a not so sudden death

 

In the place of law, a description… for the management,
disposal and alteration of the Greek foreshore and coastline land

 

Thanos Zartaloudis & Athina Papanagiotou

 

Chronos Journal, Vol. 17, Greece, 2014
[First publication in Greek, Second edition in English, February 2015]

 

This article refers to and comments on the Greek Bill for the delimitation, management and protection of the foreshore and coastline land, which was submitted to the Greek parliament, by the then government, and more specifically by the Hellenic Ministry of Finance, in Spring 2014. The Draft Law was withdrawn, after wide reaction from the public, activists and other political Parties, counter-claiming that, given its regulation, this Bill is going to permit an aggressive commercial exploitation of the Greek coastline, irreversibly changing and destroying the environment while restricting the right to unhindered access to the coast and the commons. The Bill was placed under public consultation, through the official website of the Hellenic Ministry of Finance, a process which exposed the highly problematic regulations of the Bill.

The unfortunate outcome of a Bill on the supposed protection of the Greek foreshore and beach must be understood within its conceptual, normative, political and social context. Traditionally, Public and Private Law in Greece mildly regulates public space by protecting its social, and common purpose. It is this framework that is distorted and deconstructed by the Bill in question. Public space, like seashores and beaches, and elements, such as the sea and the free flowing waters, are considered by traditional legal theory, as constitutionally protected1, non-commercial things(in the logic of the res extra-patrimonium). The latter are things that cannot be possessed or commercially exploited between individuals or individuals and the state, and therefore cannot be objects of proprietary rights as such. 

The traditional legal recognition of non-commercial things (res extra-patrimonium)3

The Constitution of Greece protects Public Space, the cultural and natural environment, as common goods4, accessible to the community and individuals,regarding their right to freely develop their personality5. After the reform of the Greek Constitution in 2001, the protection of the natural environment became a state obligation and a human right6, one of the so-called third generation human rights or solidarity rights. The basic principle of the Constitutional Protection is the notion of the sustainability of the natural environment7, which aims at a development that meets the needs of the present without compromising the ability of future generations to meet their own needs and enjoy the same rights in the future. This basic constitutional protection is specified by other articles, which constitute State obligations, such as the obligation to record and register public land8, urban design regulations based on the environmental protection, sustainability and commonweal9,and the constitutional emphasis on sharing the commons10. These constitutional obligations and principles established a generally already satisfactory framework of protective regulations.

Additionally, according to the classical distinction in the Greek Civil Code, which was entered into force in 1946, non-commercial things are divided into two categories, commons and shared things11.Both the above two categories are considered as a res extra-patrimonium, that is as things in which personal andproperty rights cannot be established, and which are incapable of being possessed as they are intended for common enjoyment. The first category (commons) includes elements such as the sea and the air, which cannot be privately appropriated or dominated. The second category (shared or otherwise communal things) includes things which are amenable to physical dominate, but remain public, such as foreshores and beaches, rivers, lakes and their banks. Shared things, although consisting public property12, are intended for public – common use and only in exceptional circumstances commercial use is allowed, after the necessary permission and as long as the common use is not inhibited13The common use and enjoyment of non-commercial things, is based on the right of every citizen to freely develop his/her personality.14

This general regulatory framework intended to protect the public nature of non-commercial things, and defend the unrestricted enjoyment of public space by the community. It is important that this framework did not consist of an exhaustive regulation of every aspect of public space, regarding the ways and means of its use by the community. Paradoxically, the above set of principles and regulations left non-commercial things, in a way, unregulated and allowed the enjoyment of public space, in this semi-unregulated status. This could be better understood by distinction with commercial things, in relation to which the personal and property rights are particularly described and regulated by the Greek Civil Code, so that their use is not open to new manners of use and redefinitions. 

However, there should be a distinction between a not exhaustive regulation and a loosening of the necessary demarcation of common and shared things, as the latter could result into a form of deficient protection. More specifically, the incomplete demarcation, recording and registration of Public property in Greece, such as those exposed through the delay in the completion of the Hellenic Cadastre, as it turned out, has further exposed public space to the risk of encroachment; and has led to a deficient protection of the constitutional rights of common use and enjoyment. In other words a detailed demarcation, would in fact realize substantially the recognition of common use and enjoyment of public space, as a constitutional right. 

 

The Bill as a proposed complete redefinition of non-commercial things

Gradually the purpose and status of non-commercial things was displaced, especially with the Law 2971/2001, which both in terms of definitions and in terms of regulatory content was the immediate precedent of the controversial Draft Law. The Law 2971/2001, set out in detail the jurisdiction of the State to exploit foreshores and beaches in particular.15 This development, not accidentally, takes place in parallel with a redefinition of all of the related concepts. Elements included traditionally in the concept of non-commercial things now change legal character. For example the former foreshore,the area of land resulting from the movement of the shoreline towards the sea, due to natural silting or technical projectsis to be considered private property of the Greek State16 and therefore freely usable for commercial needs. Simultaneously, some elements gradually loose their usual meaning. For example, the beach tends to be transformed, from a zone parallel to the shoreline, where this is permitted by the geography of the land, into a vertical zone, which permits access to the sea, whenever this is considered necessary.

The new Draft Law deepens the overregulation of elements consisted the public space and the redefinition of crucial concepts such as the common use. Eventually, the controversial Draft Law establishes a dangerous period for the coastal geomorphology, common use, community and regulatory purpose. The first articles of the Draft Law, which set the relevant definitions, are indicative. The beach, as noted above, becomes a zone of land, which is added to the shoreline, in order to permit the access to the sea, where this access is necessary17. Given the abstract reference to this necessity (this abstract character is common to all the protective measures that are established by the Draft Law) the geography of coastal areas becomes not just a disjoint space, where a few will have access by paying, but a field of personal and property rights, where common use is excluded substantially and by definition. The beach, from a shared thing, turns into an instrumental and commercial zone, which permits access to the sea, of an indeterminate width, which may not exceed fifty meters18. There are similar regulations about the riparian zones of rivers and lakes.

More specifically, the purpose of elements, such as the foreshores, the beaches, the banks of rivers and lakes and the riparian zones, as determined by the Bill, is not the common use, but the unimpeded communication between the land and the sea, the river or the lake19. The Bill prevents common use and converts elements of public space to instrumental properties, which either ensure the basic urban design of the upcoming structures of the Greek coast or require exploitation. For example, according to the Bill, parts of the sea, it becomes possible to have conveyed;20 although –as it has been noted earlier– elements such as the sea and the air are not owned by the Greek State, according to the traditional legal theory and principles but, instead, consist commons upon which the State retains only sovereign rights. The possibility of exploitation, under certain conditions, of public space is not by definition the problem. The large legal and political issue here is the distortion, if not abolition, of the very nature of non-commercial things, as social goods. 

One could hypothetically summarize the concept of the whole draft law in a single draft article, which would foresee that:

The grant and exploitation of non-commercial things is permitted, upon the decision of the Commission21 for the management of beaches, foreshores, lakes, rivers, their banks and riparian zones and on the condition of the determination of a reasonable price. Administrative fines are foreseen for possible encroachments.

The above assumption helps the overall understanding of a Draft Law, extremely, complex on its provisions, describes –and not regulates– in details the exploitation plan for the long coastal part of the country. The foreshores, the beaches, the rivers and the lakes, as well as parts of the sea, may be granted to individuals for commercial use after an evaluation process by the Commission, which is not specified on its principles and exact criteria.22 Furthermore there is no provision of control by the Commission on the use of these elements,in order to prevent the decisive intervention on the natural environment, which will lead to irreversible alteration. For example, according to the Bill, it is possible for the Greek State to grant parts of the sea and allow their embankment to the neighboring tourism business, as long as the latter consists of a so-called Strategic investment.23 Strategic investors are given the right to backfill five square meters of sea, per sustained berth! Similarly the Bill allows constructions on the beach for business purposes, such as umbrellas, beach bars, and summer beds24 and provides investors with the possibility of technical projects, such as beach expansions25 and floating platforms26 that will irreversibly change the natural environment and disrupt the ecosystems. The Bill does not, further, specify the extent, the terms and the exact exchange between these uses. Despite its title, the Draft Law for the delimitation, management and protection of the foreshore and beach does not establish, even roughly, a minimal protective framework. 

 

In the place of a regulation, a description for the fulfillment of specific commercial plans

The antisocial narrative of the irrevocable destruction of the natural environment and the abolition of common use and public space is completed by the legalization of existing illegal developments on the coastline, upon payment to the Greek state purse reflecting the properties’ value.27 The latter provision highlights the legalized violation of the constitutional rights for the common use of the natural environment. Those who offend common use and encroach public space are not treated as offenders of constitutionally guaranteed rights, but merely as debtors of administrative state fines. Ironically, free campers are treated by the Greek State more stringently than the encroachers. Free camping is a criminal offence and entails administrative fines, while instead it does not consist a permanent occupation of public space, it has minor impact on the environment compared to business uses and luxury houses; and one could add that it is in fact, in part, a mere realization of the public right of common use, which, by definition, does not exclude others from public space. In this way, and only in outline here, the distinction between the legal and the illegal is placed under a permanent managerial redefinition instead of a juridical examination and in conformity with an ethical, constitutional and political monitoring and evaluation. A cause of this ‘strategy’ through, among else, the challenge of the recent policy in Greece as is evident in this Bill, appears with particular intensity again and again duringthe last four years: That is collecting emergency monetary sums through the aggressive sale of undervalued common goods. Such management and redefinition of the commons happens as a result in the name of an undefined (and unrelated) crisis, and in the name of a mantra of private investment and development. 

Regardless of the content, what is missing in the Bill, in order for a public consultation to be in fact possible and meaningful is the regulative purpose and regulatory sense of any such Bill per se. As already hinted, apart from any political, ethical or social critical approach the Bill in question which describes –and does not even pretend to regulate– the essence of the coastal and riparian landscape of Greece, and which is based on already agreed investments and business plans, is first of all unacceptable in its very legislative manner. It contravenes a good old tradition that the rule of law must remain an open regulative possibility and not a closed order or indeed a full description of a legitimation of unconstitutional acts, foretold. The descriptive character of the rules of the Bill ignores the very regulatory and necessarily general as well as principled character of a proposed regulatory legal text, which aims at the protection of the commons and public land. Instead in this Bill the conditions, the criteria, the exchange and the technical characteristics of the exploitation of the coastal area remain unclear, undefined and totally abstract under the absolute discretion of the Commission. Eventually the legislature itself is to be perhaps transformed into a management committee, which does not regulate, organize and arrange the quality of life of citizens in accordance with the laws, social consensus and the Constitution, but instead announces and describes the agreed investments under which the Greek State conveys even things that can not be owned, since they are by definition non-commercial.

 

From a government of values to an exceptional management

The merely descriptive character of authoritative legal texts, witnessed more and more often in current legislative practice, corresponds to an exceptional type of governance. Following on from the arbitrary decision that Greece is going through an exceptional economic and political period, the proposed law in turn does not propose to regulate any more under enshrined constitutional principles, but simply announces and narrates what amount effectively not to regulations but decisions in the form of texts, which are assumed to be regulative. The Bill for the delimitation, management and protection of the foreshore and beach entails an a posteriori description, not an a priori protective regulation.Its content and text betray the manner of an exceptional management, rather than a regulatory and protective legal code. The situation is thus better understood in the wider framework of neo-liberal politics and legislation, where the basic quality of power is the conversion of the political and social nature of governance into an administrative and apolitical oikonomia. This managerial type of governance during a state of exception does not evaluate, regulate, or governs, but instead it decides, announces, rearranges and suppresses.

In the face of such practices and irrespective of the fate of this Bill or any comparable attempt in the future, what the concerned community should claim with regard to non-commercial things, such as the foreshores and beaches, is simply not yet another protective legal rule, which will guarantee common use. Such a regulative framework already exists and it is able to provide the necessary protective measures (cadastre, control mechanisms). The truly protective proposal is: no further regulation. The tradition has to be remembered: organize and regulate legally important parts of social life and let essential ones unregulated, for they are better protected if they are not tampered with. The exhaustive regulation – even if it were proposed with better intentions than the then government, is the wrong direction for a terrain such as public space, which in order to remain under common use, it should remain open to all potential modalities of those who will enjoy their common use. In other words, common use by definition cannot be a pre-emptively determined and described use.

The notions of public space and common use have been distorted internationally, if not substantially demised. This is the real state of exception in which we are called upon to respond individually and collectively. A real crisis compared to the one, based on which the governments pretend that they govern painfully, but in the name of necessity. They pretend to do so not merely because decisions in Greece follow the directives of financial elites, but also because the very concept of the political life has been subject to a continuing crisis and has been shown to be dominated by an apolitical and antisocial management of exceptions in the place of a principled political governance.

 

NOTES:

1. Article 24, Constitution of Greece.

2. Article 967 et seq., Greek Civil Code.

3. Similar is the regime of foreshore and beach in UK, where this kind of Public space is usually considered as Crown Estate. This property is not private and can be traded only under the regulation of Crown Estate Act 1961.

4. Article 24, Constitution of Greece.

5. Article 5§1, Constitution of Greece.

6. Article 24§1, Constitution of Greece.

7. Article 24§1, Constitution of Greece.

8. Article 24§2, Constitution of Greece.

9. Article 24, Constitution of Greece.

10. Article 24, Constitution of Greece.

11.  The division and the whole logic of Greek Civil Code follows the classical division of res extra-patrimonium in Roman Law, between common things, pubic things, res universitatis and res nullius. To be more accurate the Greek Civil Code, following the distinction of the Roman law recognizes three categories of non-commercial things, commons, shared and things intended to serve certain purposes (religious, municipality needs), Article 967 et seq., Greek Civil Code. To avoid confusion this article refers only to the first two categories. 

12. Article 968, Greek Civil Code.

13. Article 968, Greek Civil Code.

14. Article 57, Greek Civil Code and Article 5§1, Constitution of Greece.

15. Article 13 et seq., Law 2971/2001.

16. Article 2§5, Law 2971/2001, There is a distinction to be made between state’s private and public property. The former is similar to individual’s property, so is considered to include commercial things, while the latter is consisted by non-commercial things. 

17. Article 1, Draft Law for the delimitation, management and protection of the foreshore and beach.

18. Article 5§1, Draft Law for the delimitation, management and protection of the foreshore and beach.

19. Article 2§3, Draft Law for the delimitation, management and protection of the foreshore and beach.

20. Article 13, Draft Law for the delimitation, management and protection of the foreshore and beach.

21. According to the Crown Estate Act 1961, in the UKa similar Commission, the Crown Estate Commissioners, is responsible for the management of the Crown Estate, which includes approximately 55% of the UK’s foreshore. However,the Crown Estate Act 1961 sets the principles for the management of the Crown Estate, which are general but not totally abstract and intend to “maintain and enhance its value” (1.3, Crown Estate Act 1961). On the other hand, the Bill in question does not have a clear protective purpose, defined at least generally. The Bill describes the future abolition of the Greek coastline as Public Space, without providing any protective principles and conditions under which the transactions should be regulated. 

22. Article 10 et seq., Draft Law for the delimitation, management and protection of the foreshore and beach.

23. Article 13§5, Draft Law for the delimitation, management and protection of the foreshore and beach. Strategic investors are excluded from the common legal framework of business activity in Greece, in order to be expedited in every possible way, in terms of fast track entrepreneurship. Strategic investors include big scale enterprise projects, which have the right to bypass necessary administrative processes and are benefitted with tax cuts and other privileges.  HYPERLINK "http://www.investingreece.gov.gr/default.asp?pid=169&la=1"http://www.investingreece.gov.gr/default.asp?pid=169&la=1

24. Article 11§1, Draft Law for the delimitation, management and protection of the foreshore and beach.

25. Article 13§2, Draft Law for the delimitation, management and protection of the foreshore and beach.

26. Article 13§1, Draft Law for the delimitation, management and protection of the foreshore and beach.

27. Article 15, Draft Law for the delimitation, management and protection of the foreshore and beach.

28. Article 18, Draft Law for the delimitation, management and protection of the foreshore and beach.

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  ΧΡΟΝΟΣ 22 (02.2015)