ABSTRACT

This contribution suggests that the binary distinction between purely “public” and “private” PES is not relevant from a legal point of view. A gradient model of public intervention seems more accurate, from private PES mostly, in which the whole process is voluntary and mainly governed by private contracts between the beneficiary and producers, to mainly public-driven PES, based on subsidies paid for predefined sustainable farming practices. Within this gradient, three factors may influence the performance of the instrument and ensure its effectiveness, efficacy or efficiency: actors, knowledge and monitoring. Another correlation with the success of PES seems to lie in the intensity and the quality of the mechanism's normative framework, whatever the public or private nature of the regulation. This should take three kinds of factors into account: ecological concerns, social concerns and economical concerns.

INTRODUCTION

This contribution will present the results of a legal study made for a European collective project called “Invaluable”. This study deals with the question of the place of Law in market-based instruments (MBI), in Payments for Ecosystem Services (PES) specifically.

Ecosystem services were presented in 1997 by Gretchen Daily as “the conditions and processes through which natural ecosystems and species that build support and enable human life”. A simplified definition, subject to a relative consensus, was proposed in the 2005 Millennium Ecosystem Assessment (MEA): services here refer to “benefits provided by ecosystems to human well-being”. These benefits can be goods (food, wood, vegetable fats …) but also services (air purification, pollination …). Their preservation refers to the expression of societal needs that can be associated with basic needs (food, the need to breathe …), energy, or welfare or cultural identity (tradition …). In order to maintain these services, Market-based instruments were then developed outside of the law. Some of them are called Payments for Environmental Services (PES).

PES has not received a standard definition, but globally they consist in remunerating someone for the continuation or the implementation of a virtuous practice with regards to biodiversity and ecosystem services. They tend to be considered in terms of market-based instruments in the economic literature. If we analyse PES through a legal approach, we should introduce the notion of “agreement”.