“Slovenian Environmental Policy Analysis – from

Institutional Declarations to Instrumental Legal Regulation”

Andrej Sotlar

Bojan Tičar

Bernarda Tominc

1. Introduction

• »If one does not know to which port one is

sailing, no wind is favourable«

Seneca

• »rational plan of action” – environmental and security policy

• analysis of strategic documents from the field of national security, crime prevention, environment protection and natural disaster management

• state and non-state bodies that are obliged to tackle threats to environment

• aspects of legal protection of the environment in Slovenia (administrative and criminal law)

2. Environment and Security

• Environmental protection as part of (national) security – a political construct or natural fact?

• Homer-Dixon 1994, 1998; Levy 1994; Kajfež-Bogataj 2006; Prezelj 2007; Grošelj 2007 – they have all exposed the meaning of environmental factors in connection to national and international security.

• Environmental protection will remain an element of national security:� because national security »needs« a natural environment as a

context where it establishes and ensures the basic functions of social environment and

� because environmental problems and threats are more easily solved on a group level, even through co-(operation) of national states – still

the main actors and creators of (national and international) security

Concepts of Security

• National level

– »national security«

– »homeland security«

– »human security«

• International level

– »system of collective security« (UN-like)

– »system of collective defence« (NATO-like).

• These concepts may co-exist in practise, they are not

excluding and they even may function mutually.

However - we are in some kind of transition phase where

security concepts originating from security needs, expectations and demands of individuals will proceed

towards (superior) group/state entities (»bottom-up«

approach) and not vice versa.

Paradox - since environmental threats in the majority do not acknowledge national borders, it is only possible to

systematically tackle them collectively-managed, even conducted from the top down, i.e. from national and

supranational entities to individuals, positioning us again at the familiar »top-down« approach. We must therefore

somewhat relativise the thesis of »transition«, as well!

National security interests and goals of RS

Resolution on the National Security Strategy of the RS (2010):

• National interests are »vital« and »strategic«.

� Long-standing and vitally important interests: »to preserve independence, sovereignty and territorial integrity of the state, and to preserve the national identity, culture and originality of the Slovene people, both within Slovenia’s internationally recognised borders and abroad«.

� Strategic interests: »acknowledging and respecting the inviolability of internationally recognized borders…access to open waters…the functioning of a democratic political system, the respect for human rights and basic freedoms, the strengthening of a legal and social state…international peace, security and stability and the preservation of the environment and national resources in the Republic of Slovenia«.

• National security objectives: »efficient activity of a legal

and social state, a high degree of security that is based on

appropriate precautions, arrangement and preparedness of all capacities necessary for efficient and timely detection

and response to modern sources of threats and security risks, efficient environment protection and preservation of

natural sources and assuring strategic sources,

invigorating good relations with neighbouring and other countries,…promoting peace and strengthening security

and stability in the international community«

Sources of threats to security

Declarative (political), perceived, real (statistical)

• Declarative threats

– Global sources of threats; climate changes, financial,

economical and social risks and critical focal points.

– Supranational sources of threats: terrorism, illegal activities

connected to conventional weapons, WMD and nuclear technology, organised crime, illegal migration, cyber

threats, abuse of informational technologies and systems,

foreign intelligence service activities and military threats.

- National sources of threats: threats to public security,

natural and other disasters (especially earthquakes, flooding, thunderstorms, droughts, extent fire outbreaks,

emerging infectious diseases in humans, animals and

plants, road traffic accidents, industrial disasters, as well as disasters that are a consequence of various forms of

intentional threatening), limited natural sources and the degradation of the environment (possible problems with

import of power supply and raw materials; because of global warming and environmental pollution - possible

problems in supplying qualitative drinking water and with

providing natural food sources), epidemiological threats and certain factors of uncertainty (poverty, negative

demographic movement…).

Perceived threats

Table 1: Factors Endangering Slovenia’s Security (N = 1000) – SPOP, Fac. of Social Sciences,UL

• _______________________________________________________________________________________________

• 1994 1999 2001 2003 2005 2007

• _______________________________________________________________________________________________

• - traffic accidents* – 3,21 3,24 3,16 3,12 3,34

• - crime 3,11 3,46 3,28 3,28 3,20 3,20

• - drugs, narcotics 2,91 3,45 3,41 3,28 3,21 3,17

• - degradation of environment 3,17 3,35 3,07 2,91 3,06 3,04

• - sell-out of social property 3,01 3,14 2,87 3,06 2,96 3,03

• - poverty – 3,13 3,05 3,08 3,05 2,99

• - low birth rate 2,25 3,29 3,00 3,09 3,14 2,98

• - unemployment* – 3,35 3,14 3,26 3,24 2,97

• - natural and technol. disast. 2,80/2,76 3,19 2,76 2,62 2,73 2,85

• - suicides – 3,08 2,88 2,82 2,77 2,74

• - economic problems 3,08 3,22 2,99 2,92 2,85 2,69

• - refugees, illegal immigrants 2,68 2,98 2,74 2,59 2,49 2,52

• - internal political instability 2,89 2,94 2,53 2,59 2,45 2,51

• - lagging behind in the field of

• - science and technology 2,66 2,83 2,33 2,47 2,55 2,41

• - contagious diseases, AIDS, etc.* – 2,77 2,43 2,21 2,28 2,22

• - conflicts on the territory of

• former Yugoslavia 2,72 2,74 2,09 2,31 2,22 2,15

• - extreme nationalism 2,48 2,53 2,20 2,14 2,15 2,07

• - terrorism 2,45 2,64 2,09 1,87 1,90 1,91

• - military threats of other countries 2,36 2,21 1,79 1,76 1,68 1,70

• _______________________________________________________________________________________________

• Note: Table shows average values on the scale 1 – 4, where 1 means “not at all a threat”, and 4 means “a strong threat”.

• *Question was not posed. (Source: Malešič & Vegič, 2009: 103, 105).

Real (statistical) threats

Table 2: Environmental crime – police statistics

Sources: Resolution on the Prevention and Suppression of Crime (Official Gazette of the

Republic of Slovenia No. 43/2006) and Crimes – statistics through 2005 – 2009

(http://www.policija.si/index.php/statistika/kriminaliteta)

3. Towards common environmental and security policy/system?

• Fragments of security and fragments of environmental policy!

- “environmental-security policy”?

• If we combine the emost significant strategic documents

concerning the field of national security, crime prevention,

protection against natural and other disasters and environmental protection, we provide roughly the following

image:

� Resolution on the National Security Strategy of the Republic of Slovenia (2001)

� Resolution on the National Security Strategy of the Republic of Slovenia (2010)

� Resolution on the National Environmental Action Programme 2005-2012 (2006)

� Resolution on the Prevention and Suppression of Crime (2006)

� Resolution on the National Programme of Prevention and Suppression of Crime for the Period of 2007 – 2011 (2007)

� Resolution on the Programme for Protection against Natural and Other Disasters for the Period of 2009 - 2015 (2009)

----------------------

• The legislation that reflects the »political

environmental/ecological output« - “environmental security system”?

� Constitution of the Republic of Slovenia (OG RS No. 331/1991-1, 42/1997, 66/2000, 24/2003, 69/2004, 68/2006)

� Environment Protection Act (OG RS No. 41/2004, 17/2006, 20/2006, 28/2006, 39/2006 49/2006, 66/2006, 112/2006, 33/2007, 57/2008, 70/2008, 108/2009)

� Nature Conservation Act (OG RS No. 96/2004)

� Waters Act (O G RS No. 67/2002, 110/2002, 2/2004, 41/2004)

� Management of Genetically Modifided Organisms Act (OG RS No. 67/2002)

� Act on Protection against Ionising Radiation and Nuclear Safety(OG RS No. 67/2002)

� Act on the Protection against Natural and Other Disasters (OG RS No. 51/2006)

� Fire Protection Act (OG RS No. 3/2007)

� Fire Service Act (OG RS No. 113/2005)

� Penal Code (OG RS No. 55/2008, 66/2008, 39/2009, 55/2009)

� Minor Offences Act (OG RS No. 3/2007, 109/2009)

� Police Act (OG RS No. 107/2006, 14/2007, 42/2009)

� Local Police Act (OG RS No. 139/2006)

� Private Security Act (OG RS No. 126/2003, 7/2007, 16/2007, 102/2007, 96/2008, 41/2009)

� Decree on Obligatory Setting-up of Security Service (OG RS No. 43/2008, 16/2009, 22/2010)

� Defence Act (OG RS No. 82/1994…46/2010)

� Service in the Slovenian Armed Forces Act (OG RS No. 68/2007, 58/2008)

• An analysis of the documents exposes a whole variety of terminology concepts when it comes to protecting the

environment - how consistent and effective can we be if we are not even consistent in the terminology?

However, on the other hand, political and legal acts indirectly

or directly define the bodies within the “environmental security system”:

– political-decision making bodies (creators of environmental security policy): National Assembly, Government, Ministry of Environment and Spatial Planning, Environment protection Council of the RS, National Security Council, Environmental Agency of the RS, Slovenian Nuclear Safety Administration etc.)

– executing-operational bodies (they deal with the prevention, detection and prosecution of environmental crime and illegal acts or deal with the damage caused by such acts): � the internal security system: the MI and the Police, the State Prosecutor's

Office, various inspection services, municipal warden services, private security

services etc.

� the defence system: the Slovenian Armed Forces and civil defence

� the disaster management system (or the system of protection against natural and other disasters):

� Civil protection

� Units and services of associations and other nongovernmental organisations

� Companies, public institutions and other organizations

� The Police (especially in providing security, and participating in (mountain, traffic)

rescue operations)

� The Slovenian Armed Forces (particularly its air units, nuclear, chemical and

biological defence units, engineering units, medical services and other units)

BUT:

• no preventive measure of the state and its institutions can be

successful in a long term if it is not acceptable to the people, to the civil society.

• therefore, raising the security culture and environmental awareness is a prerequisite for successful coping with environmental threats. When it comes to intentional or unintentional threat to the environment, the key in this context

is also developing a self-restricting attitude in individuals and in the society. The strategic decision of the state, originating in the National Environmental Action Programme 2005-2012 and according to which the public or non-governmental organizations will appropriately cooperate in the environmental

policy-making process, therefore seems even more important to us!

•

4. Instrumental Legal Regulation • According to ecocentrism (versus antropocentrism), the centre

of legal protection is nature and not the exploitation of nature by humans.

• This direction must also be followed by contemporary national and transnational legislation.

• The ecocentric foundation of the regulation of nature has been followed in the last two decades by cogent regulation of European and Slovenian administrative law through the system of positive law.

• The national regulation of environmental protection in administrative law in the Republic of Slovenia is a fairly new legal discipline that has existed and been developing only for the last two decades. Slovenian national regulation also derives from EU enviromental law.

Environment protection in Slovenian administrative law

• Four fundamental principles of environmental protection contained in

the second paragraph Article 174 of the TEU.These are the following :

(1) the precautionary principle (le principe de précaution, der Grundsatz

der Vorsorge),

(2) the principle of preventive action (le principe d'action préventive, der

Grundsatz der Vorbeugung),

(3) the principle of correction at source (le principe de correction à la

source, der Grundsatz, Umweltbeeinträchtigungen mit Vorrang an

ihrem Ursprung zu bekämpfen), and

(4) the polluter pays principle (le principe de pollueur-payeur, das

Verursacherprinzip).

The above-mentioned principles are implemented in the Slovenian legal order through the Environmental Protection Act (EPA)

• Slovenian EPA has thirteen fundamental principles. These are the following: (1) the principle of sustainable development, (2)the principle of integration, (3) the principle of cooperation, (4) the principle of prevention, (5) the precautionary principle, (6) the principle of the accountability of the person responsible for a burden on the environment, (7) the principle of payment for causing a burden on the environment , (8) the principle of subsidiary action, (9) the principle of incentives, (10) the principle of public access to information, (11) the principle of the protection of rights, (12) the principle of the admissibility ofactivities affecting the environment, and (13) the principle of the ecological function of property.

Environmental Protection Consent (Permit) in Administrative Law in Slovenian Legislation

• The environmental protection consent is a central individual administrative act that every entity responsible for a planned activity must obtain in accordance with Slovenian legislation (Article 57 of the EPA-1).

• In order to operate an installation or plant where any activity that might cause large-scale environmental pollution will be carried out, the operator must obtain an environmental protection consent.

• All types of permits are issued by the Ministry of the Environment or its affiliated body, i.e. the Environmental Agency of the Republic of Slovenia (hereinafter referred to as the EARS).

Environmental inspector(his/her tasks and fines)

• If an environmental inspector establishes that a person liable for the operation of

a plant or installation does not have the necessary environmental protection

permit, he or she does not instruct the person liable to obtain such permit, but

prohibits the operation of the installation or plant if it is operating without an

environmental protection permit (see item 6 of the first paragraph of Article 157

of the EPA-1).

• As the legislature determined that the operation of a plant or installation without

obtaining a prior environmental protection permit is prohibited, it provided for the

imposition of sanctions; a legal entity may be imposed a fine in the amount of

1,200 to 360,000 EUR.

• A person subject to inspection is obliged to remedy the irregularities or

deficiencies within the determined time limit; if they do not do so themselves, the

inspectors force them to remedy such in execution proceedings with the

execution carried out by a third person or by a fine.

• Inspectors thus do not only impose measures, but also ensure that such

measures are implemented.

Environment protection in Slovenian criminal law

• The criminal law in the most successful and most acceptable

manner reinforces the social consciousness of the moral unacceptability and danger of those social actions that apply to lat:

mala in se (evil in itself).

• Socially less acceptable are those offenses which are presented in

the national criminal law as lat: mala prohibita (positive-legal prohibited acts).

• Acts against natural resources today are no longer just lat: mala

prohibita, but increasingly subject to lat: mala per se.

• The offenses against the environment are classified in the Penal

code predominantly under Criminal Offences against environment, space and natural resources in Chapter 32

ART-.NO. CRIMINAL OFFENCE PUNISHMENT

332. Burdening and Destruction of Environment and Space…. imprisonment of up to five years.

333. Sea and Water Pollution by Ships…. imprisonment of up to five years.

334. Import and Export of Dangerous Substances into the

Country

…. imprisonment of up to five years.

335. Unlawful Acquisition or Use of Radioactive or Other

Dangerous Substances

…. imprisonment of up to five years.

336. Pollution of Drinking Water…. imprisonment of up to three years.

337. Tainting of Foodstuffs or Fodder…. imprisonment of up to three years.

338. Unlawful Occupation of Real Property…. fine or imprisonment of up to one year.

339. Destruction of Plantations by a Noxious Agent…. fine or imprisonment of up to two years.

340. Destroying of Forests…. imprisonment of up to one year.

341. Torture of Animals…. fine or imprisonment of up to six months.

342. Game Poaching…. fine or imprisonment of up to six months.

343. Fish Poaching…. fine or imprisonment of up to one year.

344. Illegal Handling of Protected Animals and Plants …. imprisonment of up to five years.

345. Transmission of Contagious Diseases in Animals or Plants…. fine or imprisonment of up to one year.

346. Production of Injurious Medicines for Treatment of Animals…. fine or imprisonment of up to one year.

347. Unconscientiously Veterinary Aid …. fine or imprisonment of up to one year.

To sum up “the legal” part of the story… :• According to ecocentrism (versus antropocentrism), the centre of legal

protection is nature and not the exploitation of nature by humans.

• This direction must also be followed by contemporary national and transnational legislation.

• The ecocentric foundation of the regulation of nature has been followed in the last two decades by cogent regulation of European and Slovenian administrative law through the system of positive law.

• The national regulation of environmental protection in administrative law in the Republic of Slovenia is a fairly new legal discipline that has existed and been developing only for the last two decades. Slovenian national regulation also derives from EU environmental law.

• The Penal Code has also developed a precise and clear legal description of criminal acts which ensure an adequate interpretive scheme for judicial review.

5. Conclusion

• Many sectoral (line) and cross (interdepartmental) approaches,

strategies and policies have been formed (e.g. the policy of protecting and conserving the natural environment and space; the policy of protection against natural and other disasters; the national environmental action programme, etc.)

• Nevertheless, it is still difficult to identify a single, comprehensive

and consistent security policy that would address how a wide variety of sources and types of threats to the environment will be tackled.

• it is interesting (and concerning) that the Resolution on National Security of the Republic of Slovenia adopted in 2010 no longerclassifies the Policy of protecting and preserving the natural

environment and space within the national security policy framework, as it did since 2001!

• If nothing else, it's a symbolic significance - strategic documents (as well the public) dedicate a great deal of attention to environmental threats but they don't clearly define a

sectoral policy or a kind of an “environmental security policy”!

Finally, here are few more or less rhetorical questions which may also require scientific verification, namely:

• Can climate changes, natural disasters, environmental threats and risks truly even be a matter of nations, regions, the world, if they in their final consequence mainly concern the individual?

• What are (on the other hand) atomized individuals of the

society able to do on their own in preventive and curative purposes without activity coordination on a group – i.e. state level?

• Are existing (modern) security systems and concepts even capable of transformation which will allow the institutionalisation of the concept of “human security”?

• Should the matter of a national security policy in particular stand for penalizing violators of environmental laws (as a “general prevention”) and for sanitizing natural and other, even ecological disasters etc. or should it also and above all be a preventive activity in terms of promoting individual and

corporative “environmental awareness” and providing successful environmental security practices?

• As a country (Slovenia), will we only “respond to” (threats and risks, policies, requirements and expectations of the EU and UN, etc.) or will our “policies” and strategies be initiative,proactive, and anticipative?

You may send your answers, solutions, comments

and ideas to:

bernarda.tominc@fvv.uni-mb.si

THANK YOU!