In the face of the global climate crisis, the decline of biodiversity, anthropogenic pollution, and increasingly destructive industrial projects, the recognition of rights for Nature is one of the necessary levers to engage states and communities of actors, both private and public, towards ecological transition. For about fifty years, local, national, or international initiatives have gradually advanced this right.
Interview with Bernard Mossé, scientific director of the NEEDE Mediterranean association, with Victor David, lawyer, research officer at the Institute for Research and Development (IRD), and member of the Mediterranean Institute of Biodiversity and Ecology (IMBE).
# 2 Development of an environmental law in New Caledonia
The Mediterranean basin is one of the most impacted areas in the world by this ecological crisis. Its protection requires mobilization from all involved actors and the affected populations. Drawing on his experience in New Caledonia, where he participated in the emergence of a Nature law that respects both local customs and French law, Victor David, an environmental law researcher, advocates for elevating the Mediterranean Sea to the status of a legal natural entity to better protect and legally defend it.
In 2022, he launched a feasibility study with the United Nations on the recognition of the Mediterranean as a legal person.
Bernard Mossé: In 2012, you were therefore asked to create an environmental code for the Loyalty Islands, one of the provinces of New Caledonia.
Victor David: Yes. Through the Nouméa Agreement of 1998, the Caledonian Provinces obtained autonomy regarding environmental standards while having to respect the hierarchy of French norms: organic laws in particular, but also the Constitution, international treaties signed by France, etc.
We still had a certain degree of flexibility to not replicate the French environmental code word for word. That would have been pointless.
Bernard Mossé: Can we talk about a logic of subsidiarity?
Victor David: We tried to reconcile Kanak customary law and French law. The population of the Loyalty Islands Province was best positioned to produce this environmental law.
Bernard Mossé: Were there any precedents in the world for this hybridization logic?
Victor David: Very few to our knowledge. My research work has precisely been to find interesting examples from plural societies, such as Australia and New Zealand. Especially since these are Oceanian examples: how did they manage to take into account Aboriginal cultural values and Maori cultural values?
BM: Are we in the same historical span from the 1990s to 2010?
VD: Yes. But we realized that Australians had not made particular efforts, except in the area of protected areas where Aboriginal people were involved in their creation and management. For example, by appointing Aboriginal Rangers for monitoring and protection work.
In New Zealand, the environment was not the first area where Maori culture was taken into account; it came gradually. So, I would say that the first major manifestation was the rights protecting the Whanganui River in 2012.
BM: Were there any particular obstacles in French law, resistant to taking into account community identities, compared to Anglo-Saxon rights?
VD: Obviously, we had to take into account the fact that French law does not recognize any people other than the French people, and therefore the cultural values specific to an indigenous people. This was not obvious. It was essential to take these local values into account because ultimately, it is these populations that manage their immediate natural environment. And indeed, several times, when I accompanied the Loyalty Islands Province in meetings with customary authorities, they told me: “But Mr. David, we have not waited for you to protect the environment; we have been doing it for 3000 years, and the environment was doing quite well…!”
However, we should not be naive: archaeological evidence shows that animals disappeared when the very first ancestors of the Kanak arrived… It’s like the dodo on Mauritius, this flightless bird that disappeared in the 17th century.
So, to answer your question, I think there is no legal obstacle other than respect for the constitution. It is not forbidden to introduce symbolic rules, to involve local populations in the management of natural spaces, etc.
And so, it was a satisfaction to implement this environmental code that closely associates customary authorities.
BM: Beyond the co-management of protected areas, do you have other examples of adaptations of environmental law?
VD: I think of the management of invasive exotic species, which are considered one of the five major causes of biodiversity erosion. Environmental codes inspired by French law most often impose the eradication of these exotic species.
Some, considered invasive by scientists, have been somewhat tamed by local populations. Among them, some animals have even become totems. Therefore, it was out of the question to impose the eradication of totemic species. We thus introduced into the environmental code of the Loyalty Islands the idea that there would be controlled management of these invasive exotic species. It is up to the authorities of the Kanak clans and tribes to ensure that there is no proliferation of this species outside their perimeter to avoid harming endemic biodiversity. This is one example of legal adaptation.
Another example could inspire many municipalities in mainland France. The Province has precisely implemented what is called the principle of subsidiarity. This means that instead of issuing all the rules in the code, it relies on local customary authorities to manage the environment with the aim of preserving biodiversity. Thus, we trust the populations that have managed their environment for 3000 years. It is a dialogue established between the Province as an administrative entity of the French Republic and the customary authorities, which can be a council of great chiefs from one or another of the Loyalty Islands. It is truly a delegation that is put in place: it is the province that will set the rules and sanctions, the referral to the prosecutor, etc. There is thus a real co-management, a true partnership, between customary authorities and the provincial community.
Once again, this can be a source of inspiration for the entirety of French law.
Victor David, lawyer, specialist in nature law, research officer at the Institute for Research and Development (IRD), member of the Mediterranean Institute of Biodiversity and Ecology (IMBE/CNRS-AMU). Doctor in Law and Social Sciences from EHESS, Paris.
Bibliography
Article “Example of local initiatives: Loyalty Islands, New Caledonia,” in Rights of Nature, collective work, AFD, 2024, Paris.
Online article, IRD, “Launch of the MerMed project: rights for the Mediterranean Sea”
https://www.ird.fr/lancement-du-projet-mermed-des-droits-pour-la-mer-mediterranee
Online interview in the magazine Le Point, April 2024:
“Victor David, the man who wants to give legal status to the Mediterranean Sea”
From this conversation, the AI generated a stream of illustrations. Stefan Muntaner fed it with editorial data and guided the aesthetic dimension. Each illustration thus becomes a unique work of art through an NFT.