Development of Soil Awareness in Europe and Other Regions: Historical and Ethical Reflections About European (and International) Soil Protection Law
This chapter will focus on the development of soil awareness in Europe and in other regions and the legal regimes that subsequently developed. Problems of soil degradation of larger extent started in the course of the Industrial Revolution more than 200 years ago in England. Since the middle of the nineteenth century, it spread to Central Europe and brought a new quality to the conflict between the expansion of human needs and the stability of nature. Meanwhile, soil degradation is a serious problem worldwide, and policy making and legislation have to be carried out in a manner that considers the fundamental soil protection necessities. The author will discuss the reasons why soil protection has not been realized as consequently as other fields of EU (and international) environmental law. For example, soil degradation generally becomes noticeable after a relatively long period of time, and it affects human beings more indirectly than air and water pollution. What is required—besides scientific knowledge—is an ethical approach, in order to create an understanding of the basic needs of our soils. Although the principle of precaution, the preventative principle, and other fundamentals of environmental law have become internationally accepted guiding principles in human interaction, they are not applied consequently. In the European Union and other regions, the protection of our soils against biological, chemical, and physical damage has not taken place in a systematic way. As there is no EU soil protection regulation covering all substantial soil endangerment paths, not even a framework directive, it mainly seems possible to integrate soil protection into other fields of environmental law at present. There are similar processes at the international level and in specific states, where some states have enacted effective soil protection legislation. There are also similar reasons for failure in soil protection. The ethical implications of legislation are of great importance for respecting the ecological limitations of the soils. This chapter emphasizes milestones of the development of the awareness that soils need to be protected efficiently from a historical and ethical point of view.
1 Historical Milestones of Soil Protection Law
The soils of Middle and Southern Europe developed in a process of several thousands of years: they were formed since the late Ice Age and after Ice Age in the course of 14,000–16,000 years.1 Due to geomorphologic stability that prevailed in Europe under natural forest coverage in the Holozän up to the influence by farming on the vegetation and the land, soils with special profiles developed.2 During the past centuries, they were regarded particularly with respect to their production function; this was especially due to the danger of famines and the lack of food. Soils have been used for agricultural and also engineering purposes for nearly 10,000 years.3 When large-scale deforestation first began in Central Europe in the Younger Stone Age and agriculture boasted its first great revolution, soil resources seemed endless; the realization that soil resources on earth are finite only happened recently.4 However, the aspects of the use of the soils and also their protection were already far more often considered in former times5 than we would expect due to the subordinated position that the soils have in relation to other environmental media nowadays. For example, there already existed the latent danger of human-caused soil erosion in the pre-Christian cultures of the Mediterranean area and in the country of Mesopotamia due to the spread of agriculture with increasing deforestation.6
Upon this handful of soil our survival depends. Husband it and it will grow our food, our fuel and our shelter and surround us with beauty. Abuse it and the soil will collapse and die, taking humanity with it.10
Whatever I dig out from you, O Earth! May that have quick regeneration again; may we not damage thy vital habitat and heart.
Compared to what it was once, our country is like the skeleton of a body drained by disease.14
This proves that in these times, soil degradation was so strong that whole civilizations (like the Greeks or later the Romans) were—at least partly—concerned with the decrease of soil productivity; another example is the stone terraces of the Incas in the Andes, which were also built to prevent soil erosion.15 Regional climate changes cannot explain the boom-and-bust pattern of human occupation in ancient Greece. Extensive Bronze Age soil erosion coincides with changing agricultural practices that allowed a major increase in human population. In the fourth century bc, the Greek historian and philosopher Xenophon wrote in his treatise “Oikonomikos” (better known under the title “Oeconomicus”) about the two fallow-field systems.16 Three centuries later, the famous Roman politician and writer Marcus Tullius Cicero considered Xenophon’s Oeconomicus as being so important that he translated it into Latin.17 Another famous Latin prose writer, Marcus Portius Cato (Cato the Elder), wrote a book about agriculture and stated that the price of land depends upon the quality of soils; he even recognized 21 classes of soils and made notes about their protection necessities.18
The symbolically powerful image of farming and the soil19 has been incorporated in religious celebrations of fertility since Antiquity. The quoted view of Platon will be even more crucial considering the fact that North Africa as the “grainary” of the Roman Empire once was a territory with 600 flourishing cities. In 330 bc, North African grain had relieved the Greek famine. Nowadays, this area to a large extent is a desert. American soil experts from the United States Department of Agriculture found live olive trees thought to be 1500 years old, confirming that a drying climate was not responsible for the collapse in North African agriculture.
As in Mesopotamia, we recognize a similar development in China: the history of Chinese agriculture provides another example of dryland farmers from the uplands moving down onto floodplains as the population exploded.20 Then about 60 years ago, Mao and a huge group of people made their way to find new land in Western China where they found barren, dry, alkalized, or even saline land.21 Furthermore, in China, since the 1950s, sand drifts and expanding deserts have taken a toll of nearly 700,000 ha of cultivated land, 2.35 million hectares of rangeland, 6.4 million hectares of forests, woodlands, and shrub lands.22
As did the Greeks before, the Roman philosophers were aware of the fundamental problems of soil erosion and loss of soil fertility. But unlike Plato, who simply described evidence for past erosion, Roman philosophers exuded confidence that human ingenuity would solve any problems. But keeping soil on the Roman land became increasingly problematic, and therefore, as Rome grew, agriculture kept up by expanding into new territory.23 After the Roman Empire collapsed, many fields north and west of the Alps reverted to forest or grass. But due to the fact that soils do not forget, the utilization of these past centuries, even if it was more than thousand years ago, is sometimes still visible today (for example, there exists an aerial photo of the former Via Claudia Augusta near Königsbrunn in Bavaria).
In the eleventh century, famers worked less than a fifth of England. Less than 10% of Germany, Holland, and Belgium were ploughed annually in the Middle Ages. In Europe, over the years, the intervention into the soil balance, in particular soil erosion, increased by means of constant extension of the agricultural land and the increasing deforestation.24 By about AD 1200, Europe’s best soils had almost been cleared of forest. By the close of the thirteenth century, new settlements began ploughing marginal lands with poor soils and steep terrain.25 These years of human settlement are characterized by further ecosystem degeneration and subsequent soil erosion. Paracelsus, a Swiss scientist and alchemist, made interesting observations about soil formation and protection in the sixteenth century.26
At the time of the “Ancien regime,” after the death of King Louis XIV of France, particularly strict and rigid soil utilization regulations existed because the consequence of insufficient resource management was an inadequate agricultural production that had negative consequences in the form of famines. Technological innovation played a key role in the spread and adaptation of people to new environments. Agricultural “improvers” came to prominence in the seventeenth century once the landscape was fully cultivated. In other regions of the world, especially in the Global South, this development took place much later.
So far, the hardly existing political consideration of soil protection in Europe is to be attributed (among other things) to the fact that after the abolishment of the “common land” called “Allmende”27 (which was the property of the village community) in the eighteenth century, the soils were not equally regarded as common heritage like the other environmental media water and air. For example, in England, by the end of the eighteenth century, common fields had almost disappeared from the landscape. Even nowadays, the proportion between private and common property still varies very much in all regions and legal regimes of the world.28)
All progress in capitalistic agriculture is a progress in the art, not only of robbing the worker, but of robbing the soil. All progress in increasing the fertility of the soil for a given time is a progress towards ruining the more long-lasting sources of that fertility.31
Due to the constant increase in population in many European regions (especially after founding the Greater German Reich in the year 1871), the need for agricultural products increased substantially and led to an expansion of the land use on so far uncultivated soils and an intensification of the use of farmland.32 There are several indications that land decline was greatly accelerated by human settlement. Iceland is a striking example for a sensitive environment that has been damaged by unsustainable land use and natural forces during the last millennium—and it also reflects the successes and failures in soil conservation and “healing the land” activities since the establishment of the world’s oldest Soil Conservation Service in 1907.33
At the same time, the knowledge about the soils gradually increased, as, for instance, the publication of the first scientific journal exclusively concerned with the soil science (Pochvovedenie)34 in the year 1899 verifies. The potential effects of agriculture on soil and water have been known for centuries and were almost certainly among the first environmental impacts to be recognized, especially in the first half of the last century. In the twentieth century, in many European States legislation was used in order to solve specific soil problems, in particular soil erosion.35 After World War I, under the impression of famines in Europe, the increase of agricultural production was considered the most important task; this shows, for instance, the obligation of the landowner toward the community to cultivate the soil in accordance with Article 155 of the Constitution of the Weimar Republic.36 However, the forms of use of land in the European countries varied substantially,37 and legislation was used for many years in order to control land-use activities, to indirectly influence soil management systems,38 and to regulate specific soil problems.
In comparison to Europe, the United States of America’s first legal acts dealing with soil conservation were already issued in the past century following the enormous dust bowls in the mid-west in the 1930s.39 The dust bowl provided a vivid example of an agriculturally based environmental catastrophe, and it has been immortalized in literature, films, etc. (for example, in the “Grapes of Wrath” by John Steinbeck or in Rachel Carson’s “Silent Spring”). The US Congress declared soil erosion to be a topic of national emergency40 and took numerous steps in order to repair the soil damage. In this context, for instance, the first US “soil bank” was created,41 and in the year 1933, the “U.S. Soil Conservation Service” was founded by President Roosevelt,42 who has formed the saying: A nation that destroys its soils, destroys itself.
US environmental protection legislation started quite early and has made enormous progress in dealing with air and water pollution. American industry has responded to the environmental challenges in an outstanding degree. The Clean Air Acts of the 1960s and 1970 and the Clean Water Act are examples of the law being lined up to curb unsustainable conduct. But in contrast to water and air protection laws, the USA is not getting the law right in the field of soil protection. Soil programs currently only address soil erosion and contamination but not nutrient loss or other fundamentals essential to sustainable soils.43 The Obama Administration did not initiate a fundamental shift in the understanding of soils as valuable resources that play a major role in sustaining life—although it seems that President Obama tried hard to introduce the means to combat climate change. There are strong doubts whether the Trump Administration will realize the change we need, especially after the recent statements of the current President about the Paris Agreement.
Meanwhile, soil degradation is a serious global problem. In many areas of the world, soil is being irreversibly lost and degraded as a result of increasing and often conflicting demands from nearly all economic sectors. Global warming is not the only problem facing agricultural and other types of land. According to Monique Barbut, Executive Secretary of the UNCCD, only 7.8 billion hectares of land is suitable for food production globally, about 2 billion hectares is already degraded, 500 million hectares of these has been totally abandoned.44 We are losing around 12 million hectares of land each year. These lands could be restored to fertility for future use.
In the European Union, more than 150 million hectares of soil is affected by erosion, in Southern Europe predominantly by water erosion and in Central and Western Europe by wind erosion. In the most extreme cases, it leads to desertification. Western Europe is highly urbanized, and competition for the land available results in soil sealing, the covering of the ground by an impermeable material.45 Moreover, soil contamination remains a problem especially in Western Europe (application of sewage sludge, landfill of waste, etc.). There are probably 3.5 million potentially contaminated sites in the EU that affect water and soil. In Central and Western Europe, soil degradation problems are similar, although there is less soil sealing. Forty-five percent of the European soils have a low content of organic matter. There are great differences with respect to the soils’ physical, chemical, and biological properties. More than 320 major soil types have been identified in Europe.46 Like soil formation, soil degradation rates depend on soil properties, the local climate, organisms, topography, and other factors.47
This state of the European soils is a result of increasing and often conflicting demands from nearly all economic sectors. The allocation of land, for centuries being considered as ancient law (nomos) of the earth,48 was completed in the 1970s by the “soil care” as a further “terrestrial law of nature” (Urgesetz). While in earlier centuries the soil was regarded predominantly as a resource for food production, as well as a raw-material supplier,49 today also the ecological soil functions are more and more often recognized. Despite the realization that there is a need for action to protect the soils, concrete and efficient legal instruments are still lacking on European Union and international levels.50
2 Phases of EU Soil Protection Law
The environment was a latecomer to the policy agenda of European integration: the design of the European Economic Community (the treaty dates from 1957) was driven primarily by the quantitative dimensions of building the Common Market, with relatively little attention paid to its qualitative aspects. Since the beginning of the 1970s, the European environmental policy increasingly has committed itself to cleaning air and water. Nevertheless, insights into the necessity of soil protection were delayed substantially by the point of view that soil degradation is essentially about problems of countries of the Global South and only minimally affects industrial nations.51 When the forest damage occurred at the beginning of the 1980s in Europe, the importance of the soils for the forest ecosystem and the effects of soil acidification were obvious,52 and the existing need for action was slowly realized. On the basis of gathering information about the condition of the soils in EU Member States, some of these countries introduced legal mechanisms to protect the soils in the 1980s and 1990s. Meanwhile, some of the current 28 Member States have specific legislation on soil protection. However, these laws often cover only one specific threat, such as soil contamination, and do not always provide a coherent protection framework.53
Only in recent years, the problem of full soil protection has attained more awareness. In a nutshell, we could say that the development of EU soil protection law occurred in three phases54: until the adoption of the Single European Act of February 17, 1986, soil protection was not explicitly considered within the context of EC Agricultural Policy or the initial EC Environmental Policy. This changed in a second phase of development with the inclusion of the environment chapter in the Single European Act and the beginning of a common policy on the environment. It led to particular aspects of soil protection being considered with varying degrees of intensity in the Community’s policies. Environmental requirements should be integrated into the definition and implementation of other policies (like Common Agricultural Policy, Research Policy, Transport Policy, or Regional Policy). The principle of precaution, the preventative principle, and others formulated in Article 191 (2) of the Treaty of the Functioning of the EU (TFEU, as part of the Lisbon Treaty)55 have become internationally accepted guiding principles in human interaction and have a major importance in the context of soil protection. Furthermore, any proposed legislation has to take into account the complexity of environmental situations in the various regions of the Community.
The Sixth Community Environment Action Programme (EAP) adopted in 2002 by the European Parliament and the Council marks the beginning of the third phase of development and the most important to date. In its 2002 Communication “Towards a Thematic Strategy on Soil Protection,” the Commission identified eight key soil threats: organic matter decline, soil biodiversity loss, soil erosion, and soil contamination as priority aspects, as well as the additional aspects of soil sealing, soil compaction, salinization, and floods and landslides. A specific thematic strategy for soil protection was presented in 2006, together with the Proposal for a Soil Protection Framework Directive. The Soil Thematic Strategy is part of a plan to protect and preserve natural resources.56 Among the elements being assessed and explored are the obligation to identify risk areas for soil erosion, organic matter decline, compaction, salinization and landslides, and the possibility of requiring Member States to establish programs of measures to combat the risks in those areas. The draft Soil Protection Framework Directive could have filled the gap that a classification and provisions for the treatment of contaminated land are completely missing in EU law at this point. It proposed setting a common definition of contaminated sites, a soil status report, and a common list of potentially soil-polluting activities that could be used for Member States to identify the contaminated sites on their territory and to establish a national remediation strategy. Moreover, preventive requirements have also been considered in the draft Directive, e.g., to limit soil sealing.
The EU Proposal for a Soil Framework Directive was in abeyance for many years. Some Member States (like Austria or Germany) even refused to take the floor in the Environment Council in Brussels. Unfortunately, the proposal for a Soil Protection Framework Directive was withdrawn by the Juncker Commission in 2014. At least it is clear that the legal base for soil protection provisions on EU level is Article 192 (1) TFEU; it requires majority voting in the Council. In a crucial session in December 2007, EU Environment Ministers failed to find a compromise due to the fear of administrative burdens for the Member States and the principle of subsidiarity according to Article 5 (3) TEU (Treaty on European Union) as a (false) counterargument; the subsidiarity principle is often used as an excuse in these discussions. With respect to the strong local dimension of soils, action should mainly be taken at the local level. But, nevertheless, there are good reasons in favor of EU-wide measures for soil protection, in particular the multifunctionality of soils; the transboundary consequences of, for example, soil erosion and contamination; and the close correlation between soil degradation and other environmental problems (like climate change). Failure to protect the soils will undermine not only sustainability but also the long-term competitiveness of the EU.57
At present, there is no extensive, independent legal instrument for soil protection in EU Environmental Law. The current Seventh Environment Action Programme (“General Union Environmental Action Programme to 2020,” with the title “Living well, within the limits of our planet”), which entered into force on January 17, 2014, recognizes that soil degradation is a serious challenge. It mentions in one of the action areas that “there are also topics which need further action at EU and national level, such as soil protection and sustainable use of land”; other instruments for resource efficiency are also supported.58
Several EU policies and fields of environmental law are contributing to soil protection—the environmental provisions preventing pollutant entries via the pathways of air, wastes, dangerous substances, pesticides, and sewage sludge, which have an effect on the soil because they clearly provide limiting values or other regimes to minimize pollutants. But these policies often have other aims and other scopes of action. Especially in relation to its biological and physical protection, soil has been a secondary consideration to broader environmental legislation. All in all, there are many positive approaches in existing EU law, but these do not detract from the impression of a mosaic or “patchwork” at present.
In contrast to climate change where consensus has been reached in the Paris Agreement on December 12, 2015, the worldwide crisis in soil degradation unfortunately receives relatively little public attention. In June 2008, the EU hosted a high-level conference on soil and climate change in Brussels, paying attention to the fact that healthy soils play a major role in carbon fixing, whereas soil degradation leads to the transfer of massive amounts of carbon fixed in soils to the atmosphere, contributing to greenhouse warming. Soil management plays a major role in climate change mitigation and adaption: 70 billion tons of carbon is stored in our soils, so even small losses can have huge effects on our emissions of greenhouse gases. Organic matter plays another fundamental role supporting soil fertility, retaining water, sustaining biodiversity, and regulating the global carbon cycle. But organic matter is in decline. The former Environment Commissioner Stavros Dimas called on the Council “to reconsider the need to protect this most precious resource through European legislation. A soil Framework Directive would increase soil protection and safeguard crucial functions like carbon sequestration.”
At the moment, the EU pursues the objectives of soil protection with a set of mostly indirect instruments that form the “acquis communautaire” of soil protection. There are still many hurdles to take before a specific EU soil protection regulation will be adopted.
3 Soil Protection in International Law
At a global level, environmental policy is also still far from achieving comprehensive, legally relevant protection of the soils. Over the last 40 years, 30% of the world’s arable land has become unproductive. More than a tenth of the earth’s land area is desertifying. The economic losses are about $ 400 billion a year worldwide.59 Soil degradation and desertification are happening not just in Africa but all over the world.
These problems in their entirety are not conceptionally tackled by the law of international organizations in an obligatory form but only in the form of so-called pré-droit or soft law. These non-binding instruments can be completed within a shorter time frame because they are not mandatory and do not require ratification.60 There is an increasing recognition of the role of international environmental law to overcome the global problem of soil degradation. But none of these instruments are sufficient to meet the requirements of international environmental law in relation to soil. The following soft law instruments on international level make reference to soils61: in 1981, the Food and Agriculture Organization (FAO) adopted the World Soil Charter. In 1982, the United Nations Environment Programme (UNEP) published the World Soils Policy. Both documents were prepared as conjunctive instruments to encourage international cooperation in the rational use of soil resources.62 Furthermore, in 1982, the World Charter for Nature stated that the productivity of the soils shall be maintained or enhanced through measures that safeguard their long-term fertility and the process of organic decomposition and prevent all forms of degradation. They were put in concrete terms by the UNEP Environmental Guidelines for the Formulation of National Soil Policies of 1983. Agenda 21, the Action Plan of the 1992 UN Conference on Environment and Development in Rio, identified concrete steps to integrate environment and development. In 1996, the Nairobi Declaration pointed out that deforestation, soil degradation, and desertification had reached alarming proportions, seriously endangering living conditions. Furthermore, several special conferences deal with problems of soil protection, e.g. at the IUCN World Conservation Congress 2008, a specific legal workshop focused on the protection and sustainable use of soils.
At regional level, the Council of Europe achieved international attention to the problems of soil protection by the adoption of the first “European Soil Charter”63 already in the year 1972, which went far beyond other regimes of international law. The Charter described the soil as one of the most precious goods of mankind and formulated first standards relevant for European soil protection policies. Increased awareness of the importance of soil protection is reflected by the “Revised European Charter for the protection and sustainable management of soil” of May 28, 2003. However, these achievements are subject to the reservation of their binding nature and the requirement of putting it in concrete terms. As the COE’s provisions are instrumentally limited, they are able to develop suggestions for EU or international law only to the extent that they contain particularly concise or progressive instruments that could systematically and conceptionally influence the view de lege ferenda.
Investigation of the World Commission on Environmental Law (WCEL) of the International Union of the Conservation of Nature (IUCN) into provisions within existing international and regional legislative instruments indicates that existing binding instruments (also the three Rio conventions)64 are insufficient as a framework to meet the objective of sustainable use of soil. In this respect, the UN Convention to Combat Desertification (UNCCD) of June 17, 1994 (which entered into force on December 26, 1996), forms the framework for international law activities within the range of the fight against soil erosion and desertification and sets up rules for the establishment of strategies; national, regional, and subregional action programs; international cooperation; research; financial and institutional mechanisms; etc. Although the geographic focus is limited due to the definition of “desertification,” the Sixth Conference of the Parties adopted a regional annex for Central and Eastern European countries that enables the CCD to be applied more widely. At the moment, the UNCCD, as it currently stands, cannot be considered an effective instrument for the protection and sustainable use of soils. Some Mediterranean and most new Member States are affected parties and are therefore in the process of adopting regional and national action programs to combat desertification.
Other binding instruments might influence the protection and use of the soils, especially the Convention on Biological Diversity (CBD) and the UN Framework Convention on Climate Change (UNFCCC). The Kyoto Protocol,65 adopted in 1997 (coming into force in 2005), determined mandatory emission reduction targets for developed countries for the first time66 and highlights that soil is a major carbon store that must be protected and increased where possible. The Paris Agreement, which was adopted in December 2015, is a further step forward with regard to climate change policy.67 Carbon sequestration in agricultural soils by certain land management practices can contribute to mitigating climate change. In addition, with the growing importance of agrobiodiversity within the context of the CBD, the sustainability of soils will become an increasingly important subject for debate. In 2002, the COP to the CBD decided “to establish an International Initiative for the Conservation and Sustainable Use of Soil Biodiversity” as a cross-cutting initiative, regarding soil biodiversity as a provider of essential ecosystem goods and services.
It is likely that soil will become a much more important part of the debate within the UNFCCC meetings, particularly in relation to the function of soil as a carbon sink. There is an urgency to improve the synergies between the existing conventions, especially UNFCCC, CBD and UNCCD, to provide benefits for the soils. In general, a treaty can have a lawmaking effect because it may be a means by which states lay down new rules of international law. With population growth until 2050 reaching more than 9.6 billion people, the harvested yields must be increased by about 40% in order to maintain a food supply comparable to today’s situation68). Therefore, the idea of a future international soil protection convention or at least a protocol to the CBD or the UNCCD, which would contribute to a more intensified dealing with soil protection problems in all its facets, points into the right direction. A “Protocol for the Protection and Sustainable Use of Soil” as prepared by the Specialist Group on Sustainable Soils and Desertification of the IUCN World Commission on Environmental Law (WCEL) is currently being discussed.
At the international level, some hard law documents, like the CBD, take an ecosystem approach, and all three Rio conventions are binding instruments that might influence the use of the soils, but there is no specific or comprehensive soil or land protection convention yet. No legal document does include anywhere near a sufficient range of legal elements needed to protect and manage soil in a sustainable way yet.
At regional level, the Convention concerning the Protection of the Alps entered into force in 1995; the Alpine Convention Soil Protection Protocol (ACSPP)69 was adopted in 1998. In order to achieve the general objective of protection of the Alps, the parties have a specific obligation for soil protection. The Protocol is based on an ecosystem perspective, and it aims to reduce the quantitative and qualitative damages to the soils. It seeks to preserve the ecological functions of soil, prevent soil degradation, and ensure a rational use of soil in that region. Due to its legal and administrative measures for soil protection, the coordination mechanisms, and the specific instruments to special soil uses and threats, the Alpine Convention with its ACSPP recognizes the important role and ecological values of the Alps and makes a binding legal instrument for the European soils available. In its proposal for a Council Decision, the European Commission promised that several elements of the Protocol may be included in a Community policy on soil protection, e.g. monitoring requirements, identification of risk zones for erosion, flooding and landslides, an inventory on contaminated sites, and the establishment of harmonized databases.70 The Protocol could also help to implement appropriate measures in other countries at national level as any approach to soil protection has to take into account the diversity of regional and local conditions that exist in the Alpine region.
we recognize the need for urgent action to reverse land degradation. In view of this, we will strive to achieve a land-degradation-neutral world in the context of sustainable development.
By 2030, combat desertification, and restore degraded land and soil including land affected by desertification, drought and floods, and strive to achieve a land-degradation neutral world.
The UNCCD defines land degradation neutrality as “a state whereby the amount and quality of land resources necessary to support ecosystem functions and services and enhance food security remain stable or increase within specified temporal and spatial scales and ecosystems.”71 Target 15.3 uses the restrictive words “to strive to achieve a land-degradation neutral world” (LDNW). It has received wide political support, and the UNCCD invited parties to formulate national voluntary targets to achieve LDN and to integrate LDN targets into their UNCCD National Action Programmes. Through this LDN Target Setting Programme, which became operational in spring 2016, the UNCCD’s operational arm—the Global Mechanism—is supporting countries in their national voluntary LDN target-setting processes. The main objective is to enable country parties to define national baselines and to identify voluntary targets and measures to achieve LDN by 2030. In March 2016, the UN Statistical Commission approved a draft global indicator framework intended for the follow-up and review of progress toward the SDGs at the global level. SDG indicator 15.3.1, and its subindicators, which are recognized as suitable metrics for monitoring and reporting on restoration, combatting desertification, and achieving land degradation neutrality, reads as follows: “the proportion of land that is degraded over total land area.” The three subindicators are land cover and land cover change, land productivity, and carbon stocks above and below ground.
This process of target setting at the international and national levels demands a high level of awareness of the fundamental role of soils. In the process of defining land degradation neutrality, it is anticipated that there will be more focus on the development of both national and international legal regimes of sustainable use of soil over the coming years.
Several countries, including the USA, Japan, Canada, Australia, Brazil, and countries of the Global South, have already established soil protection policies that include legislation, guidance documents, monitoring systems, identification of risk areas, inventories, remediation programs, and funding mechanisms for contaminated sites for which no responsible party can be found. Such policies ensure a comparable level of soil protection to the approach endorsed by the EU Soil Protection Strategy. But most countries and international organizations still do not have an extensive, independent legal instrument for soil protection. Therefore, to sum it up, international law currently fails to take into consideration all of the implications of soil and tends to disregard it as such. What we need is an ethically relected concept to protect the soils.
4 Toward a New Soil Ethics
Starting point for ethical considerations is the philosophical discipline “environmental ethics,” which considers the moral and ethical relationship of human beings to the environment.72 It results in increased awareness of how the rapidly growing world population is impacting the environment, as well as the environmental consequences.73 Ecological integrity is defined as the “the capacity of an ecosystem to support and maintain a balanced, integrated, adaptive community of organisms having a species composition, diversity in functional organization comparable to that of similar, undisturbed ecosystems in the region.”74 Soil ethical considerations motivate action in three distinct contexts: acts of single individuals such as farmers, collective management of soils as common pool resources, and finally the justification of public policy.75 Caring for the ecological integrity of the soils is an adequate response to the current soil threats.
Failures in soil protection mainly stem from the fact that soil is undervalued by society as a resource. Policy makers on all levels mostly do not think of soil as a living resource, a complex blend of organic material and minerals necessary for our life. Many think of it as property—instead of regarding it as an ecological resource (which is no less vital and no less vulnerable than air and water76) and of taking appropriate measures to protect it. What are the reasons why soil protection has not been realized as consequently as other fields of EU environmental law? Which ethical considerations, e.g. whether property rights should be defined to include ecological limitations of the soils, should be the basis for the law?77
In the EU, most of the Member States have special regimes on property and their guarantee. Due to the process of reception of Roman law, soil is not a free good, but mostly in private property. This also explains the different scope of environmental media in political initiatives since an access to the soils protected by national (civil) law was made more difficult (due to the regularly constitutionally founded property situation in the EU Member States). Although Article 345 TFEU78 states that “The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership” (meaning that the EU leaves the national property regime untouched), it has become clear from case law developed by the European Court of Justice that this does not mean that property law as such cannot be repealed by European legislation. Property is but a particular type of institutional arrangement. It is an arrangement that defines the rights and the duties of all members. With only rare exceptions, any right must be matched by a correlative duty. Therefore, most constitutions meanwhile define property as a combination of individual entitlement and social responsibility.79 Roman land law strengthened the assignment of the land to legal persons to order the land seizure and laid down the relevant legal relationships. Since Roman land law, there exists a differentiation between the environmental media to the extent that air and water were not regarded as personal property in the legal sense and therefore were not accessible to influences according to private law, whereas the soils were not equally regarded as common heritage (res communes omnium). Therefore, the individual owner or—to a smaller extent—the beneficiary was incorrectly assumed to protect the soils.80
One of the most significant features of European rural communities from the Middle Ages to the nineteenth century was the ubiquity of common lands, especially waste lands, and the diversity of management systems.81 In the rationalist and individualistic discourse of the Enlightenment, the achievement of the common welfare was incompatible with the survival of the “commons goods.” Under this ideological aegis, the nineteenth century witnessed the culmination in Europe and Latin America of the dismantling of communal property and its privatization. Toward the end of that century, different currents of intellectual criticism of economic liberalism, both on the left and right sides of the political spectrum, vindicated the consideration of communal property as a positive thing, understanding it as an example of an assumed primitive communism and proposing its reinstatement with the social reform schemes.82 Common land was used extensively in England, Wales, and many former British colonies; in Spain; in Scandinavia (Allemensratten); in Germany (Allmende); and in the Alpine countries, especially in Switzerland. Similar common property regimes are to be found in southern Asia (e.g., India and Nepal) and Latin America (e.g., Mexico).
The metaphor of the “tragedy of the commons“ (published by Garret Hardin in the journal “Science” in 1968) illustrates how free access and unrestricted demand for a finite resource ultimately structurally dooms the resource through overexploitation. This occurs because the benefits of exploitation accrue to individuals or groups, each of whom is motivated to maximize use of the resource to the point in which they become reliant on it, while the costs of the exploitation are distributed among all those to whom the resource is available. The consequence might be to specifically advocate the privatization of commonly owned resources. Of course it would be worse if the land was not owned by anybody because then it would be used without any regard to the disadvantages resulting. But soil protection is not about privatization of communally managed resources but about the opposite, that is, the obligation of private persons to care about a common good or better a common heritage. In effect, private use repeatedly resulted in worse outcomes than compared to the previous commons management—and we see that in the context of soils as well! So the solution lays in soil protection obligations.
God will not ask thee thy race, nor thy birth.
Alone he will ask of thee,
What hast thou done with the land I gave thee?
Do they not travel through the earth and see what was the end of those before them? (…) They tilled the soil and populated it in greater numbers (…) to their own destruction (Sura 30:9).
Nowadays, only for a few people, soil fertility plays a major role for the living and the economic status. Nevertheless, the lack of sensuous experience does not necessarily constitute one of the substantial reasons for ignoring the consequences of soil degradation—because climate change and the loss of endangered species are still less easily to experience.
In addition, there is also the rather banal reason that the soil is often equated with “dirt,” and therefore soil protection is not very popular. There is also a lack of information: the fact that the imbalance between soil degradation (which takes decades) and soil formation (which needs centuries until many thousands of years) was not sufficiently considered yet. Building up soil layers of 30 cm requires a period of 1000 to 10,000 years. Therefore, changes in soil ecosystems happen over decades and occur at a pace that is relatively slow in relation to human events.86 Soil is and should be considered as a valuable, nonrenewable resource.
Another reason is that soil damage is not always clearly and immediately perceptible but often comes to light through damage to the other elements (water, air, flora, fauna). The effects of air and water pollution usually become noticeable after a relatively short period of time and affect human beings more directly than soil. The entry of pollutants into the soils and their ecological consequences are perceived only with considerable temporal delay, which is due to the storage and buffering capacity of soils. The fact that most soil degradation usually becomes noticeable after a relatively long period of time and that it affects human beings more indirectly than air and water pollution is one of the main reasons why the seriousness and urgency of the situation of soils is underestimated.
And finally, soil contamination and soil degradation do not produce any direct concern since it is regarded predominantly as a local or regional problem. Unlike for the protection of rare animal species, it is difficult to emotionally convey the problem of degrading soils because they do not evoke any “panda bear effect.”
Therefore, any commitment for the protection of a dirty thing like the soil was regarded as a bit weird in former times (and maybe still today…). Even Charles Darwin was declared to have a decaying mind when he published his last and least-known book one year before he died in 1882. It is called “The formation of vegetable mould, through the action of worms, with observations on their habits” and focused on how earthworms transform dirt and rotting leaves into soil. Darwin documented a lifetime of what might appear to be trivial observations: how the ground cycles through the bodies of worms and how worms shaped the English countryside. Had he just become crazy or discovered something fundamental about our world? Something he felt compelled to spend his last days conveying to posterity?
Darwin already found out that soil is a dynamic system that responds to changes in the environment. We now know that soil performs a multitude of environmental, economic, and cultural soil functions. According to Article 1 of the former draft EU Soil Framework Directive, they include food and other biomass production, storage, filtration, and transformation of many substances, including water, carbon, nitrogen, etc. Soil also has a role as a habitat and gene pool and a carbon pool. It acts as a provider of raw materials and serves as a platform for human activities, landscape, and heritage. Soils also serve as archives of geological and archeological heritage and give information about how people in prehistoric times lived. Soils support many different forms of life on Earth.87
Treat the Earth well. It is not inherited from your parents;
it is borrowed from your children.
This Kenyan proverb seems to reflect what is considered part of the Principle of Sustainability. In the European Union, sustainable development is a fundamental objective since the Treaty of Amsterdam of 1997 (it entered into force on May 1, 1999). It seeks to improve the quality of life for human beings without increasing the use of natural resources beyond the capacity of the environment to supply them indefinitely. These requirements of sustainable development were already introduced by the Brundtland Commission,88 and sustainable development is now being considered as a principle of international law.89 Incorporating the principle into the EU Treaty (now Article 3 (3) 2 TEU) has made it a fundamental justification for the existence of the Union (“It shall work for the sustainable development of Europe based on (…) a high level of protection and improvement of the quality of the environment”). In 2001, the European Council adopted the EU Sustainable Development Strategy, which provides a long-term vision that involves combining a dynamic economy with social cohesion and high environmental standards. The renewed EU Sustainable Development Strategy (for an enlarged EU of currently 28 Member States, after the “Brexit” (the withdrawal of the United Kingdom from the European Union) in 2019 maybe just 27) sets out a single, coherent strategy on how the EU will more effectively live up to its long-standing commitment to meet the challenges of sustainable development.90 It reaffirms the need for global solidarity and recognizes the importance of strengthening the work with partners outside the EU. Environmental sustainability mainly means meeting the present needs of humans without endangering the welfare of future generations. In the context of soil protection, the focus is on minimizing soil degradation, halting and reversing the processes. Soil sustainability means the ability of the soils to continue to function properly: it requires that human activity only uses soil resources at a rate at which they can be renewed naturally.
While international hard law is still a long way from developing a coherent soil protection approach, SDG 15 and its target 15.3, “Striving for a LDNW” are promoting soil integrity in the context of sustainable development: avoiding land degradation through land-use planning that fully accounts for the potential and resilience of land resources (reduction of the annual rate of land degradation to a certain amount), adopting sustainable land management policies and practices in order to minimize current land degradation, and rehabilitating and restoring degraded lands (an annual amount of land degraded in order to avoid net loss of land-generated ecosystem services provided to society). So in terms of principles of national and international environmental law, this is about the precautionary and preventative principle, as well as the polluter-pays principle.
Since the permanent blockage of the Soil Framework Directive in the Environment Council by some Member States, it is not sure whether and when there will be a comprehensive legal basis for sustainable use and protection of soils in the European Union that meets the requirements of the Brundtland Commission. According to the Progress Report on the Sustainable Development Strategy 2007,91 soil quality continues to deteriorate with climate change exacerbating both greenhouse gas emissions from soil and threats such as erosion, landslides, salinization, organic matter decline, etc. Several economic activities are still causing soil pollution in Europe, particularly those related to inadequate waste disposal and losses during industrial operations and agricultural activities. Implementing preventive measures introduced by the legislation already in place is expected to limit the inputs of contaminants into the soil in the coming years, for example of toxics etc.
The basis of the Precautionary Principle according to Article 191 (2) TFEU is that science cannot predict absolutely how, when, or why adverse impacts will occur or what their effect may be on humans or ecosystems. Despite the lack of proof, there is often enough information to identify and avoid a serious risk that can lead to unacceptable high costs. According to Principle 15 of the Rio Declaration, the lack of full scientific certainty is not to be used as a reason for postponing measures to prevent damage. The Preventative Principle according to Article 191 (2) TFEU or the principle “that preventive action should be taken” is often linked to the precautionary principle and promotes the prevention of environmental harm as an alternative to remedying harm already caused.
A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.
That land is a community is the basic concept of ecology, but that land is to be loved and respected is an extension of ethics.
Ron Engel has argued that a sacred covenant between humans and all life is the source of universal responsibility for the present and future well-being of humans and the living world.94 Applied to the context of soil protection, our focus should be on the protection of the ecological functions of the soils for their own inherent value. Therefore, we need to preserve ecologically stable and healthy soils and to restore the soils that are already degraded (with due regard to certain criteria) in order to ensure that future generations will have at least the same quality of soil (soil sustainability). We also need equal access to soil resources for all people. We need appropriate ecological soil standards and need to include knowledge and traditional land-use practices of indigenous and local people. And we also need to establish new legal instruments of soil protection like education, participation, monitoring, etc. The challenge facing modern agriculture is how to merge traditional agricultural knowledge with modern understanding of soil ecology to promote and sustain the intensive agriculture needed to feed our citizens. All in all, we need to develop a new soil ethic, valuing especially the ecological functions of the soils, in order to reach a high level of soil integrity.
Soil integrity is one of the basic and most neglected components of our human culture and the global ecosystem. Soil is a limited natural resource. It is a very dynamic system that performs a multitude of functions: environmental, economic, social, and cultural, which are central to both human well-being as well as the health of the environment in general. It plays a vital role in the earth’s ecosystem, being the fundamental basis for terrestrial biodiversity, supplying the vast majority of the world’s food and being more broadly recognized as having an essential function in regulating the global climate. Any use of soil should take into account its multiple ecological functions, with a view to their conservation. Soil variability is very high, and enormous differences exist worldwide in its state both within individual profiles and between soils. These diverse conditions and needs should be taken into account by individuals and by politics as they require different specific solutions. What we need is a shift in our way of thinking, away from the view of the soil only as a productive commodity.
Soil is essentially (on human timescales) nonrenewable in that the degradation rates can be rapid, whereas the formation and regeneration processes are extremely slow. Currently, at least a quarter of the world‘s land area is either highly degraded or undergoing high rates of degradation. The historic development of soil awareness and especially our hesitation to sufficiently protect the soils against further damage from industrial activities, inadequate agricultural and forestry practices, urban and industrial sprawl, or construction works reflect our lacking readiness to assume responsibility for this so-called third media. In the EU (and in many other parts of the world), the fields of biological, chemical, and physical soil protection are still “poor nephews” compared to other environmental policy making and legislation.
Although soil degradation is regarded as a serious problem in Europe, the current situation in the Environment Council where many EU Member States (e.g., Germany and the Netherlands) refuse to even discuss a Draft Soil Framework Directive arises out of the “traditional” view of soil as personal property whose landowner cannot be submitted to any legal regime or legal obligations. Given the serious nature of soil degradation across Europe, the need for regulations on soil protection is obvious: the view that soil is much more than just a piece of property will hopefully and soon lead to a comprehension of the urgent necessity of soil protection measures in the European Union and most other countries in the world. Soil is a common heritage, and its protection is in the public interest.
As a society, we need to acknowledge the importance of soil for sustainability as a whole and especially in the context of the implementation of the 2030 Agenda and its SDG 15 and its relevance also for other SDGs. For instance, soil quality is also important for the climate, having a crucial impact on the carbon absorption capacity. Where there is a risk of serious damage to one of the ecological functions of soil and when there is scientific uncertainty as to the extent of future deterioration, the precautionary principle should be applied.
When we consider the essential role that soils play in the evolution of the biosphere and the maintenance of life, we must conclude that reconciling human existence with ecological integrity would also mean that we need a paradigm shift in our thinking about the soils to ensure that future generations will have at least the same quality of soil. Our societal task would be to tread new paths toward the preservation of ecologically stable and healthy soils and to develop a new, ecology-based soil protection ethic.
Wissenschaftlicher Beirat, Welt im Wandel (1994), p. 49.
Bork et al. (1999), p. 16.
Richter and Markewitz (2001), p.5.
Blume et al. (2016), p. 581.
Oldeman et al. (1992), p. 1.
Heine (1986), p. 116 et seq. (p. 117).
Concerning Greek mythology: Pavan (1970), p. 4 et seq.
Olivelle (2014), pp. 12–13.
Lad and Frawley, Introduction to the Chapter “The manifestation of consciousness into plants.”
Kumar (2008), p. 299 et seq. (p. 299).
Kumar (2008), p. 299 et seq. (p. 300).
Montgomery (2007), p. 50.
Gesellschaft für Technische Zusammenarbeit (2000), p. 1.
CoE, European Soil Resources, p. 13.
As the classical Greek myths about Demeter who was asked to take care of the soil, see Kutilek and Nielsen (2015), p. 2.
Montgomery (2007), p. 43.
Blume et al. (2016), p. 581.
Montgomery (2007), p. 58 et seq.
Wey (1982), p. 21.
Montgomery (2007), p. 91.
Wallander (2014), p. 22.
Wey (1982), p. 22.
For details concerning property law tools, please read the next article in this IYSLP of Owley.
Kocher (1983), p. 144 (p. 150).
Wey (1982), p. 24, 29, 31 et seq.
Montgomery (2007), p. 109.
Henneke (1986), p. 7.
Arnalds and Runolfsson (2005), p. 67 et seq.
Cf. Yaloon (1999), p. 22 et seq. (p. 22).
Boer and Hannam (2003), p. 149 et seq. (p. 154).
Cf. Holzwarth et al. (2000), p. 7.
Oldeman et al. (1992), p. 1.
Kurucz (1993), p. 467.
Narjes (1984), p. 5 et seq. (p. 13).
OECD, Integrated Policies, p. 16.
Narjes (1984), p. 5 et seq. (p. 13).
Wissenschaftlicher Beirat (1994), p. 158.
Futrell (2009), p. 10077 et seq.
Barbut, Speech at the global observance of the World Day to Combat Desertification at the EXPO Milano on 17 June 2016: “Land degradation is a growing threat to global security“, http://www.unccd.int/en/media-center/Press-Releases/Pages/Press-Release-Detail.aspx?PRId=64.
Guidelines on best practice to limit, mitigate or compensate soil sealing were made public by the European Commission on 12th April 2012.
KOM (1992) 23 endg. p. 1 et seq., Vol. III, p. 30.
Montgomery (2007), p. 20.
Kimminich et al. (1996), p. 315 et seq.
Blum (1988), p. 22.
Boer and Hannam (2003), p. 149 et seq. (p. 154).
Hero, GAIA 6 (1997), p. 205 et seq. (p. 208).
Kloepfer and Franzius, UTR Vol. 27 (1994), p. 179 et seq. (p. 236).
COM (2006) 231 final of 22.09.2006, p. 1 et seq.
Heuser (2005), p. 33 et seq.
According to Art. 191 (2) TFEU “Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.”
Concerning the subsidiarity principle see Heuser (2006), p. 573 et seq.
European Commission, “Living well, within the limits of our planet”, http://ec.europa.eu/environment/pubs/pdf/factsheets/7eap/en.pdf, p. 2.
Futrell (2009), p. 10077 et seq.
Hannam and Boer (2002), p. 36 et seq.
Please see Boer et al. (2016), p. 49 et seq.
Hannam and Boer (2002), p. 61.
European Soil Charter 197 (Recommendation for the Member States), Council of Europe, Strasbourg, Ref.: B (72) 63; published in: Council of Europe, Feasibility Study, p. 40 et seq.
Text is available at http://unfccc.int/resource/docs/convkp/kpeng.pdf.
The first commitment period ended in 2011.
Text available at http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf.
Blume et al. (2016), p. 5.
Proposal for a Council Decision (presented by the Commission) on the conclusion, on behalf of the European Community, of the Protocol on Soil Protection, the Protocol on Energy and the Protocol on Tourism to the Alpine Convention, COM (2006) 80 final of 02.03.2006, p. 1 et seq.
Proposal for a Council Decision, COM (2006) 80 final of 02.03.2006, p. 1 et seq.
Definition in: DSST Environmental Science: Study Guide & Test Prep Chapter 18 (Ethical and Political Processes of the Environment), http://study.com/academy/lesson/environmental-ethics-human-values-definition-impact-on-environmental-problems.html.
Concerning Agriculture and Environmental Ethics: see Thompson (2017).
Cited from Mackey (2008), p. 61 et seq. (p.76; see also his general explanation of the Earth Cahrter and its values and statements, p. 64 et seq.).
Thompson (2011), p. 31–42 (p. 31).
Futrell, William J., Passing the torch, The Environmental Forum, 2009, p. 40 et seq. (p. 43).
Bosselmann, in: Westra/Bosselmann/Westra, p. 319 et seq. (p. 328).
Commented by Kingreen, in: Calliess and Ruffert (2016) Art. 345 AEUV, Ref. 2 et seq.
Bosselmann, in: Westra/Bosselmann/Westra, p. 319 et seq. (p. 328).
Von Lersner, NuR 1982, p. 201 et seq.
Berasin and Miguel (2008), p. 162 et seq. (p. 166).
Berasin and Miguel (2008), p. 162 et seq. (p. 163).
See quote on page 2. In another sutra the Rig Ved stated: “Harness the plows, fit the yokes, now that the womb of the earth is ready to sow…”, see Richter and Markewitz (2001), p. 5 et seq.
Ronald Engel on the World Forum on Soils, Society and Global Change (2007).
Montgomery (2007), p. 20.
Richter and Markewitz (2001), p. 31.
Blume et al. (2016), p. v.
The “Brundtland Report“ with the ofiicial title “Our Common Future” was published in 1987 and is the outcome of the work by the World Commission on Environment and Development. It laid out the concept of sustainability as containing environmental, economic and social aspects.
Bosselmann (2008), p. 319 et seq. (p. 325).
Council of the European Union, Document No. 10917/06 of 26 June 2006, Note from General Secretariat to Delegations, Review of the EU Sustainable Development Strategy (EU SDS).
Communication from the Commission to the Council and the European Parliament, Progress Report on the Sustainable Development Strategy 2007, COM (2007) 642 final of 22.10.2007, p. 1 et seq. (p. 8). According to this Progress Report key EU initiatives to foster resource conservation and biodiversity include the Thematic Strategy on Soil Protection. The EU target of halting the loss of biodiversity by 2010 and contributing to a significant reduction in the worldwide rate of biodiversity loss will not be met unless substantial additional efforts are made.
Bosselmann (2008), p. 319 et seq. (p. 324).
Engel (2008), p. 277 et seq. (p. 286, 288).
Engel (2008), p. 277 et seq. (p. 281).
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