Birgit Peters
University Trier, Germany, Law, Faculty Member
- History, Philosophy, International Relations, Human Rights, International Law, Public International Law, and 17 moreInternational Environmental Law, Public Law, Comparative Public Law, Energy Law, International Human Rights Law, European Convention of Human Rights, Environmental Sustainability, Political Philosophy, Sustainable Development, Constitutional Law, Human Rights Law, Jurisprudence, Human Rights Theory, European Court of Human Rights, Theories of Justice, Political Legitimacy, and Energy and Natural Resources Lawedit
The influence of European law on the national laws of EU member states on participation and access to justice and information in environmental matters is undeniable. There exists a multitude of primary and secondary rules regulating... more
The influence of European law on the national laws of EU member states on participation and access to justice and information in environmental matters is undeniable. There exists a multitude of primary and secondary rules regulating participation in environmental matters in a variety of different con-texts and matters. Yet, much of the European law is based on or derived from the international rules of the UN ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention). Thus, one question that arises is whether this has contributed to the crystallization of a European concept and notion of participation in environmental matters. Or do the different sources of European participation contribute to a cacophony of conceptions of participation, which implies various, if not contradicting obligations, for the Union and the member states? The answer is not simple. Participation is a complex concept and various understandings of participation exist, even at the national levels. This paper addresses this question, primarily by identifying the functions and beneficiaries of participation that are essential for determining the concept’s further contents and implications. Hence, I will first consider the elements and functions of European participation as defined by the TEU and TFEU. Second, I will address the particularities of European participation in environmental matters in the AC, the ECHR and the CFR, illustrating its purposes and main beneficiaries. I point to some of the differences and contradictions which have occurred and end with an outlook on the impact of the European understanding of participation on national regulations of participation, focussing on Germany.
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It is well known that national courts have long since maintained a transjudicial dialogue with the European Court of Human Rights (ECtHR). It describes the formal and informal conversations of the ECtHR with national constitutional and... more
It is well known that national courts have long since maintained a transjudicial dialogue with the European Court of Human Rights (ECtHR). It describes the formal and informal conversations of the ECtHR with national constitutional and highest courts on the implementation and interpretation of the European Convention on Human Rights (ECHR). The most visible elements of this dialogue are the formal contestations to final authority formulated in judgments at either of the levels involved. This chapter assesses those conflicting interactions, as expressed in the judgments of domestic courts and the ECtHR and their effects. It argues that despite the potential for conflict, the contestations have led to a tightening – or rapprochement – of ECtHR and member state relations. National courts have formalized and methodized contestations of Strasbourg’s case law by defining three major situations in which rejection of Strasbourg’s interpretations would be justified: 1. article 53 ECHR 2. Standards of the rule of law and 3. incompatible interpretations. In its replies, Strasbourg acknowledged the importance of both article 53 ECHR and rule of law standards for the formal transjudicial dialogues on the ECHR. Yet, it also pointed to the further delimitations of this framework, in particular to the consensus doctrine, which eventually calls for a further development of ECHR rights. Thus, formal transjudicial dialogues may reaffirm both the compliance with and the importance of standards of the international rule of law in the wider European realm.
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Research Interests: Law and Political Science
Environmental protection has been a long-standing question before the European Court of Human Rights. The case-law of the ECtHR is vast and extensive. Nevertheless, the protection offered by this regional human rights protection system is... more
Environmental protection has been a long-standing question before the European Court of Human Rights. The case-law of the ECtHR is vast and extensive. Nevertheless, the protection offered by this regional human rights protection system is limited. It applies to present generations who claim to be victims of present and immediate threats to those human rights guaranteed by the European Convention on Human Rights (ECHR). Also the right to a clean and healthy environment is not protected per se under the ECHR. Some might therefore argue that the ECHR is ill-suited to deal with all the threats to the environment with which modern environmental law is faced today, such as the loss of biodiversity and climate change. Others find the ECHR applies also to those scenarios. Taking a middle ground, this contribution looks at the current status of environmental protection offered under the ECHR regime and outlines possible future developments, taking into account some of the recent developments in other international human rights regimes.
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With the launch of the UN International Decade for Water on 22 March 2005, awareness is raised in the international community of the growing demand and scarcity of water for people throughout the world. Water is a particularly scarce... more
With the launch of the UN International Decade for Water on 22 March 2005, awareness is raised in the international community of the growing demand and scarcity of water for people throughout the world. Water is a particularly scarce resource in both Israel and the Palestinian Territories. The use of the water resources of the West Bank and Gaza has been part and parcel of the Israeli–Palestinian peace negotiations. With the beginning of new peace negotiations under Palestinian President Mahmud Abbas, the topic of water and its allocation to Palestinians and Israelis is back on the negotiation table. The present article will point to the water crisis in Israel and the Palestinian Territories and analyse core provisions of international law which govern the use of water resources. Finally, it will outline how an allocation of water rights according to principles of international law could take place.
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1. Introduction Andreas Follesdal, Birgit Peters and Geir Ulfstein 2. The Court and the member states: procedural aspects Ian Cameron 3. The margin of appreciation doctrine: a theoretical analysis of Strasbourg's variable geometry... more
1. Introduction Andreas Follesdal, Birgit Peters and Geir Ulfstein 2. The Court and the member states: procedural aspects Ian Cameron 3. The margin of appreciation doctrine: a theoretical analysis of Strasbourg's variable geometry Yutaka Arai-Takahashi 4. The ECHR as a living instrument: its meaning and legitimacy George Letsas 5. No longer offering fine mantras to a parched child? The European Court's developing approach to remedies Philip Leach 6. National implementation of ECHR rights Mads Andenas and Eirik Bjorge 7. The Court as a part of the Council of Europe: the Parliamentary Assembly and the Committee of Ministers Elisabeth Lambert-Abdelgawad 8. Should the European Union ratify the European Convention for Human Rights? Some remarks on the relations between the European Court of Human Rights and the European Court of Justice Leonard F. M. Besselink 9. The European Court of Human Rights and the United Nations Christian Tomuschat 10. Conclusions Andreas Follesdal, Birgit Peters and Geir Ulfstein.
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Procedural environmental rights have been found to be an effective way of securing environmental protection, but they are often discussed as a single, uniform standard and are associated with similar effects on environmental... more
Procedural environmental rights have been found to be an effective way of securing environmental protection, but they are often discussed as a single, uniform standard and are associated with similar effects on environmental decision-making. This view needs reconsideration. Comparing the procedural environmental rights guaranteed in Europe by the European Convention on Human Rights (ECHR) and the Aarhus Convention (AC), this article argues that these rights differ considerably in objective, content and scope. Taking note of these differences helps to concretize the doctrine of procedural environmental rights and supports more realistic conclusions about the contribution of procedural environmental rights to environmental governance.
Research Interests: Law, Environmental Law, Human Rights, Political Science, European Convention of Human Rights, and 8 moreEnvironmental Law and Human Rights, International Environmental Law, Environmental Governance, Social Science Research Network, Convention on Biological Diversity, Convention, Aarhus Convention, and unpacking
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Die europaische Entscheidung fur die erneuerbaren Energien - essentieller Bestandteil der Energiepolitik der Europaischen Union (EU, 2013) - verlangt grose infrastrukturelle Veranderungen, auch im Bereich der europaischen Stromnetze.... more
Die europaische Entscheidung fur die erneuerbaren Energien - essentieller Bestandteil der Energiepolitik der Europaischen Union (EU, 2013) - verlangt grose infrastrukturelle Veranderungen, auch im Bereich der europaischen Stromnetze. Bisher unterversorgte Regionen mussen an die grosen Versorgungslinien angeschlossen werden. Dazu wird die Erweiterung der Netzkapazitaten erforderlich, damit grosere Mengen Strom uber grosere Distanzen befordert werden konnen (European Network of Transmission System Operators [ENTSO-E], 2014). Schlieslich mussen Netze zusammengefuhrt und ertuchtigt werden, um den in den jeweiligen Zentren fur Wind- oder Solarenergie erzeugten Strom zu den Verbrauchern zu transportieren (Europaische Kommission [EU KOM], 2011a).
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The right to a clean and healthy environment (the exact formulations differ) is yet to be recognized as an independent right in the international bill of rights. The right is not mentioned in the Universal Declaration of Human Rights... more
The right to a clean and healthy environment (the exact formulations differ) is yet to be recognized as an independent right in the international bill of rights. The right is not mentioned in the Universal Declaration of Human Rights (1948) or in the International Covenant on Civil and Political Rights (1966). Nevertheless, discussions revolving around international recognition of the right to a clean and healthy environment have continued since the early 1970s, when the UN Declaration on Environment (Stockholm Declaration (1972) and Rio Declaration (1992)) stated that “[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being…“(Principle 1) (Principle 1, UN Conference on the Human Environment, ‘Stockholm Declaration of the United Nations Conference on the Human Environment’). Moreover, both the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) and the Convention on the Rights of the Child ((adopted 20 November 1989, in force 2 September 1990) 1577 UNTS 3) make reference to an adequate condition of the environment (see article 12 of the ICESCR and article 24 of the CRC, in particular). The jurisprudence of human rights monitoring bodies to other treaties, like the Human Rights Committee, has started to recognize the application of human rights in environmental contexts. The right has also been recognized at the regional level, in a great number of constitutions, and at the sub-constitutional level. Considering the extent of international and in particular regional human rights treaties that refer to the environment, their case-law and the latest discussions on the matter, it seems that today, the question to ask about the human right to a clean and healthy environment is not whether the right should be acknowledged internationally, but how.
Research Interests: Law, Human Rights Law, Human Rights, Political Science, International Human Rights Law, and 10 moreCultural Rights, Environmental Law and Human Rights, International Environmental Law, Fundamental Rights, Dignity, Social Science Research Network, International Environmental Law and Policy, Declaration, Right to Property, and International Covenant on Civil and Political Rights
Die Bürgerbeteiligung Nach Dem Energiewirtschafts- Und Netzausbaubeschleunigungsgesetz – Paradigmenwechsel Für Die Öffentlichkeitsbeteiligung Im Verwaltungsverfahren? (Citizen Participation According to New German Grid Expansion Acceleration Act - Old Wine in New Bottles or Paradigm Shift for the...more
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It is well known that national courts have long since maintained a transjudicial dialogue with the European Court of Human Rights (ECtHR). It describes the formal and informal conversations of the ECtHR with national constitutional and... more
It is well known that national courts have long since maintained a transjudicial dialogue with the European Court of Human Rights (ECtHR). It describes the formal and informal conversations of the ECtHR with national constitutional and highest courts on the implementation and interpretation of the European Convention on Human Rights (ECHR). The most visible elements of this dialogue are the formal contestations to final authority formulated in judgments at either of the levels involved. This chapter assesses those conflicting interactions, as expressed in the judgments of domestic courts and the ECtHR and their effects. It argues that despite the potential for conflict, the contestations have led to a tightening – or rapprochement – of ECtHR and member state relations. National courts have formalized and methodized contestations of Strasbourg’s case law by defining three major situations in which rejection of Strasbourg’s interpretations would be justified: 1. article 53 ECHR 2. Standards of the rule of law and 3. incompatible interpretations. In its replies, Strasbourg acknowledged the importance of both article 53 ECHR and rule of law standards for the formal transjudicial dialogues on the ECHR. Yet, it also pointed to the further delimitations of this framework, in particular to the consensus doctrine, which eventually calls for a further development of ECHR rights. Thus, formal transjudicial dialogues may reaffirm both the compliance with and the importance of standards of the international rule of law in the wider European realm.
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The Water Framework Directive 2000/60/EC (WFD) is in many ways exemplary of modern environmental regulation. Focusing no longer on a strictly prohibitive approach to achieve the overall amelioration and conservation of the quality of... more
The Water Framework Directive 2000/60/EC (WFD) is in many ways exemplary of modern environmental regulation. Focusing no longer on a strictly prohibitive approach to achieve the overall amelioration and conservation of the quality of European surface and groundwater sources, its major aim is qualitative: the directive requires all European member states to achieve a good status of their surface and groundwater sources by 2015. Also among rules and recommendations of the directive on participation of the public in decisions on plans and programmes regarding water policy the regulatory approach of the directive concentrates on a combination of qualitative and procedural measures. Accordingly, the WFD recommends that active involvement of all interested parties be required when deciding upon the water basin management plans. However, there are many open questions about the role and function of active involvement as a qualitative legal standard. Previous research on other qualitative ru...
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Environmental protection has been a long-standing question before the European Court of Human Rights. The case-law of the ECtHR is vast and extensive. Nevertheless, the protection offered by this regional human rights protection system is... more
Environmental protection has been a long-standing question before the European Court of Human Rights. The case-law of the ECtHR is vast and extensive. Nevertheless, the protection offered by this regional human rights protection system is limited. It applies to present generations who claim to be victims of present and immediate threats to those human rights guaranteed by the European Convention on Human Rights (ECHR). Also the right to a clean and healthy environment is not protected per se under the ECHR. Some might therefore argue that the ECHR is ill-suited to deal with all the threats to the environment with which modern environmental law is faced today, such as the loss of biodiversity and climate change. Others find the ECHR applies also to those scenarios. Taking a middle ground, this contribution looks at the current status of environmental protection offered under the ECHR regime and outlines possible future developments, taking into account some of the recent developments...
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Procedural environmental rights have been found to be an effective way of securing environmental protection, but they are often discussed as a single, uniform standard and are associated with similar effects on environmental... more
Procedural environmental rights have been found to be an effective way of securing environmental protection, but they are often discussed as a single, uniform standard and are associated with similar effects on environmental decision-making. This view needs reconsideration. Comparing the procedural environmental rights guaranteed in Europe by the European Convention on Human Rights (ECHR) and the Aarhus Convention (AC), this article argues that these rights differ considerably in objective, content and scope. Taking note of these differences helps to concretize the doctrine of procedural environmental rights and supports more realistic conclusions about the contribution of procedural environmental rights to environmental governance.
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This case analysis considers the long-awaited judgment of the Grand Chamber of the European Court of Human Rights in Lautsi v Italy. The author identifies the three key issues raised by the case: the contribution to the substantive scope... more
This case analysis considers the long-awaited judgment of the Grand Chamber of the European Court of Human Rights in Lautsi v Italy. The author identifies the three key issues raised by the case: the contribution to the substantive scope and interpretation of the rights of parents to determine the religious education of their children; the Court’s use of a European consensus to navigate the margin of appreciation; and the increasingly evident importance of the principle of subsidiarity under the European Convention on Human Rights. In particular, the author argues that the Court’s own case law has considered neutrality, as enshrined in art.2 of Protocol 1 to the Convention, as a concept which is designed to ensure mutual tolerance between competing religious groups. The author therefore questions whether the decision to display symbols associated with Catholicism can really be deemed neutral. The analysis goes on to suggest that the European Court of Human Rights needs to elaborate on the concept of positive obligations, which it has yet to define, as well as on the nature and scope of the margin of appreciation provided to states in the area of positive obligations.
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German Abstract: Selten standen sich gesetzgeberische Notwendigkeiten und ablehnender Burgerwille so un-mittelbar gegenuber wie beim Ausbau der Hochspannungsleitungen. Wahrend das Ob des Ausbaus durch die Ausbaugesetze vorgeschrieben ist,... more
German Abstract: Selten standen sich gesetzgeberische Notwendigkeiten und ablehnender Burgerwille so un-mittelbar gegenuber wie beim Ausbau der Hochspannungsleitungen. Wahrend das Ob des Ausbaus durch die Ausbaugesetze vorgeschrieben ist, trifft das Wo und Wie der Planung oft auf den Protest der Anwohner. Die Ausbaugesetze betonen deswegen die Herstellung von Partizipation und Akzeptanz als neue Ziele der Offentlichkeitsbeteiligung beim Energielei-tungsausbau. Dabei bleibt jedoch unklar, ob die neuen Ziele bestimmte Auslegungen des Rechts oder bestimmte Verhaltensweisen der Verwaltung fordern. Dies untersucht der vorlie-gende Beitrag, unter anderem unter Bezugnahme auf politik- und sozialwissenschaftliche Verstandnisse von Partizipation und Akzeptanz.English Abstract: Seldom were legislative necessities and opposing citizen views confronted as directly as on matters concerning the expansion of the grid in Germany. While new laws emphasize that expanding the grid is inevitable for realizing the recent energy transformation, individual expansion projects face fierce opposition on the ground. Thus, laws like the German Grid Expansion Acceleration Act, or the Energy Industry Act, underline participation and acceptance as new objectives of the relevant rules concerning participation. However, it is still unclear whether the new objectives require the implementation of particular practices or specific legal interpretations. Assessing the relevant rules, as well as the objectives of participation and acceptance, this paper draws toward notions of participation and acceptance utilized in the social sciences to answer the question at the heart of this paper.
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Das im Januar 2014 in Kraft getretene Gesetz zur Suche und Auswahl eines Standortes für ein Endlager für Wärme entwickelnde radioaktive Abfälle (StandAG) setzt neue Maßstäbe im Bereich des Öffentlichkeitsbeteiligungsrechts. Es erfordert,... more
Das im Januar 2014 in Kraft getretene Gesetz zur Suche und Auswahl eines Standortes für ein Endlager für Wärme entwickelnde radioaktive Abfälle (StandAG) setzt neue Maßstäbe im Bereich des Öffentlichkeitsbeteiligungsrechts. Es erfordert, unter anderem, die Herstellung eines ‚offenen und pluralistischen Dialogs’ mit der Öffentlichkeit sowie eine Dokumentation, über welche Punkte im Verfahren Akzeptanz besteht. Für das deutsche Verfahren stand das Schweizer Suchverfahren Pate. Der vorliegende Beitrag untersucht daher im Rahmen einer vergleichenden Darstellung, inwieweit und inwiefern die deutschen bzw. Schweizer Regeln über die Öffentlichkeitsbeteiligung bei der Endlagersuche die Befriedungsfunktion der Öffentlichkeitsbeteiligung am Verwaltungsverfahren zu realisieren vermögen.
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The rules governing marine environmental protection and climate change are diverse and range from direct regulatory approaches addressing the effects of climate change on the marine environment to rules targeting their mitigation.... more
The rules governing marine environmental protection and climate change are diverse and range from direct regulatory approaches addressing the effects of climate change on the marine environment to rules targeting their mitigation. Nonetheless, it is remarkable that most rules addressing marine environmental protection and climate change, especially the most recent, tackle this issue indirectly, from the viewpoint of marine environmental protection. This chapter illustrates this “environmental protection approach” by assessing current and emerging regulations targeting marine climate change, as well as some of its limitations. Discussing the rules addressing the major causes of climate change, as well as those mitigating its effects, the chapter argues that climate change has become a major and cross cutting issue of the international rules addressing environmental protection. While this may be a viable and legitimate way to address the major effects of climate change, it is still questionable whether the established framework is far reaching enough to address the root causes of climate change and its impacts on the global marine environment.
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The influence of European law on the national laws of EU member states on participation and access to justice and information in environmental matters is undeniable. There exists a multitude of primary and secondary rules regulating... more
The influence of European law on the national laws of EU member states on participation and access to justice and information in environmental matters is undeniable. There exists a multitude of primary and secondary rules regulating participation in environmental matters in a variety of different con-texts and matters. Yet, much of the European law is based on or derived from the international rules of the UN ECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention). Thus, one question that arises is whether this has contributed to the crystallization of a European concept and notion of participation in environmental matters. Or do the different sources of European participation contribute to a cacophony of conceptions of participation, which implies various, if not contradicting obligations, for the Union and the member states? The answer is not simple. Participation is a complex concept and various understandings of participation exist, even at the national levels. This paper addresses this question, primarily by identifying the functions and beneficiaries of participation that are essential for determining the concept’s further contents and implications. Hence, I will first consider the elements and functions of European participation as defined by the TEU and TFEU. Second, I will address the particularities of European participation in environmental matters in the AC, the ECHR and the CFR, illustrating its purposes and main beneficiaries. I point to some of the differences and contradictions which have occurred and end with an outlook on the impact of the European understanding of participation on national regulations of participation, focussing on Germany.
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Building on an empirical analysis of the jurisprudence of the International Court of Justice and the two ad hoc tribunals for ex-Yugoslavia and Rwanda, this book sheds new light on the development of custom as a source of international... more
Building on an empirical analysis of the jurisprudence of the International Court of Justice and the two ad hoc tribunals for ex-Yugoslavia and Rwanda, this book sheds new light on the development of custom as a source of international (criminal) law.
Research Interests: Law and Political Science
in: Keller/Ulfstein (eds.) Human Rights Treaty Bodies, Law and Legitimacy (CUP 2012)
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With the launch of the UN International Decade for Water on 22 March 2005, awareness is raised in the international community of the growing demand and scarcity of water for people throughout the world. Water is a particularly scarce... more
With the launch of the UN International Decade for Water on 22 March 2005, awareness is raised in the international community of the growing demand and scarcity of water for people throughout the world. Water is a particularly scarce resource in both Israel and the Palestinian Territories. The use of the water resources of the West Bank and Gaza has been part and parcel of the Israeli–Palestinian peace negotiations. With the beginning of new peace negotiations under Palestinian President Mahmud Abbas, the topic of water and its allocation to Palestinians and Israelis is back on the negotiation table. The present article will point to the water crisis in Israel and the Palestinian Territories and analyse core provisions of international law which govern the use of water resources. Finally, it will outline how an allocation of water rights according to principles of international law could take place.
Research Interests:
Research Interests:
Procedural environmental rights have been found to be an effective way of securing environmental protection, but they are often discussed as a single, uniform standard and are associated with similar effects on environmental... more
Procedural environmental rights have been found to be an effective way of securing environmental protection, but they are often discussed as a single, uniform standard and are associated with similar effects on environmental decision-making. This view needs reconsideration. Comparing the procedural environmental rights guaranteed in Europe by the European Convention on Human Rights (ECHR) and the Aarhus Convention (AC), this article argues that these rights differ considerably in objective, content, and scope. Taking note of these differences helps to concretise the doctrine of procedural environmental rights and supports more realistic conclusions about the contribution of procedural environmental rights to environmental governance. – Please send me a personal message for the Pdf version of the paper.
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The Water Framework Directive 2000/60/EC (WFD) is in many ways exemplary of modern environmental regulation. Focusing no longer on a strictly prohibitive approach to achieve the overall amelioration and conservation of the quality of... more
The Water Framework Directive 2000/60/EC (WFD) is in many ways exemplary of modern environmental regulation. Focusing no longer on a strictly prohibitive approach to achieve the overall amelioration and conservation of the quality of European surface and groundwater sources, its major aim is qualitative: the directive requires all European member states to achieve a good status of their surface and groundwater sources by 2015. Also among rules and recommendations of the directive on participation of the public in decisions on plans and programmes regarding water policy the regulatory approach of the directive concentrates on a combination of qualitative and procedural measures. Accordingly, the WFD recommends that active involvement of all interested parties be required when deciding upon the water basin management plans. However, there are many open questions about the role and function of active involvement as a qualitative legal standard. Therefore , this essay asks, firstly: What (minimum) quality must participation attain to be called active involvement? Secondly, this essay investigates whether active involvement as a voluntary standard has any positive effect on member states' participatory practices in water management planning. The questions will be addressed by assessing the European framework provided for participation and active involvement in environmental decision-making under the WFD and the AC and by examining the practice of ten German Länder in the planning period leading up to the second management plan for the Elbe river for the period 2015-2021.
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At fifty, the European Court of Human Rights finds itself in a new institutional setting. With the EU joining the European Convention on Human Rights in the near future, and the Court increasingly having to address the responsibility of... more
At fifty, the European Court of Human Rights finds itself in a new institutional setting. With the EU joining the European Convention on Human Rights in the near future, and the Court increasingly having to address the responsibility of states in UN-lead military operations, the Court faces important challenges at the national, European and inter- national levels. In light of recent reform discussions, this volume addresses the multi-level relations of the Court by drawing on existing debates, pointing to current deficits and highlighting the need for further improvements.
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Customary international law is the most important source of international criminal law. Fifty years after the Nuremberg trials, many convictions imposed by the tribunals for the former Yugoslavia and Rwanda are still based on customary... more
Customary international law is the most important source of international criminal law. Fifty years after the Nuremberg trials, many convictions imposed by the tribunals for the former Yugoslavia and Rwanda are still based on customary international law alone. The International Criminal Court, by contrast, has not yet had much opportunity to give more guidance on this matter. Hence, it is worthwhile to provide an overview of the current status of custom by analysing the ad hoc tribunal’s case law on this point. Including a comprehensive synopsis of current literature and a contrast of the ad hoc tribunal’s case law with the jurisprudence of the International Court of Justice, this book offers an inclusive insight into the source’s past and future.
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The right to a clean and healthy environment (recently: right to a healthy and sustainable environment, the exact formulations differ) is yet to be recognized as an independent right in the international bill of rights. The right is not... more
The right to a clean and healthy environment (recently: right to a healthy and sustainable environment, the exact formulations differ) is yet to be recognized as an independent right in the international bill of rights. The right is not mentioned in the Universal Declaration of Human Rights (1948) or in the International Covenant on Civil and Political Rights (1966). Nevertheless, discussions revolving around international recognition of the right to a clean and healthy environment have continued since the early 1970s, when the UN Declaration on Environment (Stockholm Declaration (1972) and Rio Declaration (1992)) stated that “[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being…“(Principle 1).
Moreover, both the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) and the Convention on the Rights of the Child make reference to an adequate condition of the environment. The jurisprudence of human rights bodies to other treaties, like the Human Rights Committee, has started to recognize the application of human rights in environmental contexts. The right has also been recognized at regional level, in a great number of constitutions, and at sub-constitutional level.
Considering the extent of international and in particular regional human rights treaties that refer to the environment, their case-law and the latest discussions on the matter, it seems that today, the question to ask about the human right to a clean and healthy environment is not whether the right should be acknowledged internationally, but how.
Moreover, both the International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR) and the Convention on the Rights of the Child make reference to an adequate condition of the environment. The jurisprudence of human rights bodies to other treaties, like the Human Rights Committee, has started to recognize the application of human rights in environmental contexts. The right has also been recognized at regional level, in a great number of constitutions, and at sub-constitutional level.
Considering the extent of international and in particular regional human rights treaties that refer to the environment, their case-law and the latest discussions on the matter, it seems that today, the question to ask about the human right to a clean and healthy environment is not whether the right should be acknowledged internationally, but how.
Research Interests:
Environmental protection has been a long-standing question before the European Court of Human Rights. The case-law of the ECtHR is vast and extensive. Nevertheless, the protection offered by this regional human rights protection system is... more
Environmental protection has been a long-standing question before the European Court of Human Rights. The case-law of the ECtHR is vast and extensive. Nevertheless, the protection offered by this regional human rights protection system is limited. It applies to present generations who claim to be victims of present and immediate threats to those human rights guaranteed by the European Convention on Human Rights (ECHR). Also the right to a clean and healthy environment is not protected per se under the ECHR. Some might therefore argue that the ECHR is ill-suited to deal with all the threats to the environment with which modern environmental law is faced today, such as the loss of biodiversity and climate change. Others find the ECHR applies also to those scenarios. Taking a middle ground, this contribution looks at the current status of environmental protection offered under the ECHR regime and outlines possible future developments, taking into account some of the recent developments in other international human rights regimes.
Research Interests:
The rules governing marine environmental protection and climate change are diverse and range from direct regulatory approaches addressing the effects of climate change on the marine environment to rules targeting their mitigation.... more
The rules governing marine environmental protection and climate change are diverse and range from direct regulatory approaches addressing the effects of climate change on the marine environment to rules targeting their mitigation. Nonetheless, it is remarkable that most rules addressing marine environmental protection and climate change, especially the most recent, tackle this issue indirectly, from the viewpoint of marine environmental protection. This chapter illustrates this " environmental protection approach " by assessing current and emerging regulations targeting marine climate change, as well as some of its limitations. Discussing the rules addressing the major causes of climate change, as well as those mitigating its effects, the chapter argues that climate change has become a major and cross cutting issue of the international rules addressing environmental protection. While this may be a viable and legitimate way to address the major effects of climate change, it is still questionable whether the established framework is far reaching enough to address the root causes of climate change and its impacts on the global marine environment.
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The customary international law on individual and state immunity from jurisdiction for serious international crimes largely developed by the decisions of national courts. In 1998, the Pinochet cases before the British House of Lords (now:... more
The customary international law on individual and state immunity from jurisdiction for serious international crimes largely developed by the decisions of national courts. In 1998, the Pinochet cases before the British House of Lords (now: Supreme Court), or the Spanish Audiencia Nacional and other judgments quickly set the standard for cases concerning criminal jurisdiction. They confirmed the rule that former heads of states and high ranking state officials could be subject to individual criminal jurisdiction for grave international crimes committed during their term of office. However, those judgments contributed only to the formation of the customary rule that former heads of states could be prosecuted before national criminal courts for serious crimes committed during office. As later affirmed by the International Court of Justice (ICJ) in Belgium v. Congo, incumbent heads of states and high ranking state officials, such as foreign ministers, could not be individually prosecuted at national levels while still in office. This was notwithstanding their criminal prosecution at the international level, as also provided by article 27 (2) of the Rome Statute of the International Criminal Court. After this first wave of judgements had defined the customary rules on immunities from individual criminal jurisdiction, courts discussed from 2011 onwards, whether those principles also applied in civil cases concerning reparations for the harm suffered by the victims. Here, a customary rule did not crystallize as quickly as in criminal matters. Rather, national and international jurisprudence affirmed, that a customary rule lifting immunity in cases concerning individual civil liability for grave international crimes did not exist. Three major judgments reported on ILDC contributed greatly to this discussion. In the Vojotia judgment, the Italian Court of Cassation tried to enforce the judgment of the Greek Tribunal of Leivadia, which had awarded a payment of ca 20 million Euro to the victims of the German attack on the Greek village Distomo of June 1944, in which about 300 villagers had died. After the Court of Appeal of Florence had allowed the enforcement of the judgment in Italy, the case eventually reached the Court of Cassation. Germany launched simultaneous proceedings before the ICJ. Although the proceedings were already pending in The Hague, the Court of Cassation declared the case admissible and upheld the findings of the Court of Appeal. On the merits, it affirmed previous Italian jurisprudence, which had established that acts committed in violation of jus cogens norms could not be considered as acts de iure imperii. Thus, it found states did not enjoy immunity from civil jurisdiction for those acts. Still, those findings did not reflect the customary international law on state immunity from civil jurisdiction at the time. As the ICJ confirmed a year later in Germany v. Italy, there existed no customary rule which established such an exception from the immunity from civil jurisdiction in international law. In Jones, the British House of Lords needed to contemplate whether UK courts had jurisdiction to entertain proceedings brought by claimants against a foreign state and its officials at whose hands they suffered torture,