Sustainability & Law Lectures PDF

SUSTAINABILITY & LAW LECTURES: 1. BASIC CONCEPTS 1.1 – Empirical scope 1.2 – Normative characteristics 1.3 – Precautionary principle 1.4 – Reflection: environmental justice? [opt.] 1.5 – Q&A L...

SUSTAINABILITY & LAW LECTURES: 1. BASIC CONCEPTS 1.1 – Empirical scope 1.2 – Normative characteristics 1.3 – Precautionary principle 1.4 – Reflection: environmental justice? [opt.] 1.5 – Q&A Lecture 1.2 Sustainability & Law (MEEM) 1 1 SUSTAINABILITY & LAW NORMATIVE CHARACTER 1. A section across What? 2. A cross section of Legal Areas? 3. A cross section of Legal Interests? 4. A cross section of Legal Principles? Relevant literature: Heldeweg, Michiel (2023). Introductory text, paras. 1.2.2-3 (nos. 13-44; excluding nos. 14-35) Lecture 1.2 Sustainability & Law (MEEM) 2 2 1  SUSTAINABILITY & LAW? NORMATIVE CHARACTER 1. A SECTION ACROSS WHAT?  What is environmental law (‘EL’) about? As functional area of law  What is a functional area of law (v-a-v general areas)?  What is the relevance of being a functional area of law?  NB: empirical scope/focus on Pollution, Exhaustion, Nuisance…  How does EL relate to (some) other (relevant) functional areas of law? (See next slide) Lecture 1.2 Sustainability & Law (MEEM) 3 3 SUSTAINABILITY & LAW? NORMATIVE CHARACTER 1. A SECTION ACROSS WHAT?  What is environmental law (‘EL’) about? How does EL relate to (some) other (relevant) functional areas of law?  Spatial: Urban planning, Nature Conservation, Cultural history, Water Management?  Socio-economic : Energy, Transport (e.g. aviation), Social policies (employment/poverty), Labour safety?…… Looked at as being internal or external to EL  Depending on legal tradition/culture, policy and history (dynamic!) Lecture 1.2 Sustainability & Law (MEEM) 4 4 2  SUSTAINABILITY & LAW NORMATIVE CHARACTER 1. A SECTION ACROSS WHAT? (2)  Internal versus External? *Why is this relevant? Lecture 1.2 Sustainability & Law (MEEM) 5 5 SUSTAINABILITY & LAW NORMATIVE CHARACTER 2. A CROSS-SECTION OF LAW - E.G. Lecture 2!  Constitutional and administrative environmental law  Criminal environmental law  Civil environmental law  International environmental law Lecture 1.2 Sustainability & Law (MEEM) 6 6 3  SUSTAINABILITY & LAW NORMATIVE CHARACTER 3. A CROSS-SECTION OF INTERESTS  ‘Symmetrical & Vertical opposites’  government citizen  public  private interest  ‘Symmetrical & Horizontal opposites’  citizen  citizen  private  private interest  ‘Asymmetrical opposites’  private for public? CSR & Collective Action  public for private? Government Custodianship? Lecture 1.2 Sustainability & Law (MEEM) 7 7 SUSTAINABILITY & LAW NORMATIVE CHARACTER 3. A CROSS-SECTION OF INTERESTS  ‘Symmetrical & Vertical opposites’  governmentX  governmentY  publicX  publicY  ‘Symmetrical & Horizontal opposites’  governmentX  governmentY  privateX  privateY  ‘Asymmetrical opposites’  private for public? ‘GSR’  public for private? Government Custodianship? Lecture 1.2 Sustainability & Law (MEEM) 8 8 4  SUSTAINABILITY & LAW NORMATIVE CHARACTER 4. A CROSS-SECTION OF PRINCIPLES  General principles of law! - private: e.g., bona fides - public: e.g., (criminal law) praesumptio innocentiae, (administrative law) principles of natural justice (e.g., proportionality) - international: e.g., no harm (lectures 3-4)  General environmental principles? -? Lecture 1.2 Sustainability & Law (MEEM) 9 9 SUSTAINABILITY & LAW NORMATIVE CHARACTER 4. A CROSS-SECTION OF PRINCIPLES  General environmental principles? - sustainability - precautionary - prevention - source-aimed - polluter pays - ALARA (BAT(NEEC); BPM)  Bindingness?  Y/N: policy and/or legal  Whom: government and/or citizens  NB SDGs: not legally binding  Consider possible differences in normative stances on principles …see Lecture 1.3 Lecture 1.2 Sustainability & Law (MEEM) 10 10 5  WHAT’S NEXT? Lecture 1.3 Precautionary principle Lecture 1.2 Sustainability & Law (MEEM) 11 11 ENVIRONMENTAL LAW ADDENDUM RIGHTS …  Which Environment?  Of Whom? Rights of nature? 2nd concern: what are rights? NB Hohfeld: relational concept!  1 st order (of factual behaviour: changing facts *)  2 nd order (of legal behaviour: changing rights **) * through ‘factual acts’ / **through ‘legal acts’ Lecture 1.2 Sustainability & Law (MEEM) 12 12 6  ENVIRONMENTAL LAW ADDENDUM RIGHTS …  Which Environment?  Of Whom? NB Hohfeld – types of rights relations 1st order (of factual behaviour: changing facts)  As a claim vs a duty  to see done vs to do / to see refrained from vs to refrain  As a privilege vs a no claim  To do vs having to tolerate action / to refrain vs to tolerate inaction Lecture 1.2 Sustainability & Law (MEEM) 13 13 ENVIRONMENTAL LAW ADDENDUM RIGHTS …  Which Environment?  Of Whom? NB Hohfeld – types of rights relations 2nd order (of legal behaviour: changing rights [in 1st/2nd order])  As a power vs a liability  to change rights vs to accept a change in rights  As an immunity vs a disability  to withstand a change on rights vs an inability to change rights Lecture 1.2 Sustainability & Law (MEEM) 14 14 7  ENVIRONMENTAL LAW ADDENDUM RIGHTS …  Which Environment?  Of Whom? NB Hohfeld – types of rights relations Lecture 1.2 Sustainability & Law (MEEM) 15 15 ENVIRONMENTAL LAW ADDENDUM RIGHTS …  Which Environment?  Of Whom? NB Hohfeld – types of rights relations  non-human legal subsjects having rights…  as claim or as privilege  as power or as immunity  With the ability to legally pursue (e.g., in court)  or be represented Lecture 1.2 Sustainability & Law (MEEM) 16 16 8  SUSTAINABILITY & LAW LECTURES: 1. BASIC CONCEPTS 1.1 – Empirical scope 1.2 – Normative characteristics 1.3 – Precautionary principle 1.4 – Reflection: energy justice? [opt.] 1.5 – Q&A Lecture 1.3 - Sustainability & Law (MEEM) 1 1 SUSTAINABILITY & LAW PRECAUTIONARY PRINCIPLE NB L1.2 A CROSS-SECTION OF PRINCIPLES  General environmental principles? - sustainability - precautionary - prevention - source-aimed - polluter pays - alara (BAT(NEEC); BPM) This principle lies behind the analysis of this lecture L1.3 NB Bindingness: possible differences in normative stances on principles – depending on jurisdiction! Lecture 1.3 - Sustainability & Law (MEEM) 2 2 1  SUSTAINABILITY & LAW PRECAUTIONARY PRINCIPLE DIFFERENT NORMATIVE STANCES: precautionary principle D.J. Vogel Transatlantic Shift in Risk Regulation (RR) “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” (Rio Declaration 1992) Lecture 1.3 - Sustainability & Law (MEEM) 3 3 SUSTAINABILITY & LAW PRECAUTIONARY PRINCIPLE 5. DIFFERENT NORMATIVE STANCES: precautionary principle D.J. Vogel Transatlantic Shift in Risk Regulation (RR) Until (approx.) 1990 RR in USA sooner & stricter After 1990 vice versa and EU more comprehensive 1990 ‘flipflop’ –application of precautionary principle RIO! Before 1990: EG complaints v. USA in GATT Later USA complaints in WTO-context Lecture 1.3 - Sustainability & Law (MEEM) 4 4 2  SUSTAINABILITY & LAW PRECAUTIONARY PRINCIPLE 5. DIFFERENT NORMATIVE STANCES: precautionary principle Role of Precautionary principle (Pp) - EU: Pp ‘discretion’ of restrictive regulation - USA: Pp. undermines ‘Scientific Risk assessment’ ‘phantom risks’  ‘sound science’ USA: if no risk proven: permission EU: if chance of risk: restriction. Lecture 1.3 - Sustainability & Law (MEEM) 5 5 SUSTAINABILITY & LAW PRECAUTIONARY PRINCIPLE 5. DIFFERENT NORMATIVE STANCES: precautionary principle USA: avoid ‘false positives’ (hypothesized risk) (Type 1 policy error) - risk-assessment; avoid overregulation - at best a precautionary approach (v principle) error EU: avoid ‘false negatives’ (hypothesized risk) (Type 2 policy errors) - precaution; avoid underregulation Lecture 1.3 - Sustainability & Law (MEEM) 6 6 3  SUSTAINABILITY & LAW PRECAUTIONARY PRINCIPLE 5. DIFFERENT NORMATIVE STANCES: precautionary principle Global: outside USA, EU is leading in economic and social regulation (by ‘soft law’?) note……. Even states within the USA choose EU instruments and standards….. Companies reasoning: what is allowed in the EU, is allowed everywhere… ‘trust’/’trading-up’ Lecture 1.3 - Sustainability & Law (MEEM) 7 7 SUSTAINABILITY & LAW PRECAUTIONARY PRINCIPLE 5. DIFFERENT NORMATIVE STANCES: precautionary principle USA & EU: many similarities and much trade.. Convergence!? 1. difference HSE-risk perception and ‘public pressure’ after 1990 2. USA HSE = ‘bipartisan’; EU new MS ‘green’ orientations + rise ‘Green parties’ 3. in USA RR via agencies under strict judicial control, in EU more room for EU-institutions (control deficit) T-TIP Lecture 1.3 - Sustainability & Law (MEEM) 8 8 4  SUSTAINABILITY & LAW? PRECAUTIONARY PRINCIPLE STATE OF PLAY IN ACCEPTANCDE PRECAUTIONARY PRINCIPLE What legal basis? - Treaties (e.g.) - Rio declaration (1992): principle 15 (not binding) - TFEU, Article 191 (Maastricht Treaty 1992) (only binding EU) - Stockholm convention, Cartagena protocol, Fish stocks Agreement (BAT), UNFCCC (‘take into account’), etc. - Case law (e.g.) - ICJ Gabcikovo-Nagymaros (1997; alluding/not explicit), - Pulp Mills (2010; “a ‘precautionary approach’ may be relevant in interpretation…”) Lecture 1.3 - Sustainability & Law (MEEM) 9 9 SUSTAINABILITY & LAW? PRECAUTIONARY PRINCIPLE STATE OF PLAY IN ACCEPTANCDE PRECAUTIONARY PRINCIPLE What legal status? - Part of Treaty and/or international customary law (NB ‘persistent objectors’?) and/or legal principle - As government ‘may’ or as government ‘shall’ intervene? What operational use? - To inspire policies, including lawmaking - To bind (escalating) - Prohibition, command (BAT; EIA, risk assessment), conditional permission (e.g. ’experimental’, ‘hand on tap’; obligation to inform/report), reversal of burden of proof, prudence, due diligence, with precautionary approach… Lecture 1.3 - Sustainability & Law (MEEM) 10 10 5  WHAT’S NEXT? Lecture 1.4 Reflection: environmental justice? Lecture 1.3 - Sustainability & Law (MEEM) 11 11 6  SUSTAINABILITY & LAW LECTURES: 1. BASIC CONCEPTS 1.1 –Empirical scope 1.2 – Normative characteristics 1.3 – Precautionary principle 1.4 – Reflection: environmental justice [opt] 1.5 - Q&A Lecture 1.5 - Sustainability & Law (MEEM) 1 1 LEGAL RELATIONS & REGULATION Before we move to Lecture 2 subjects Some MC-questions about Lecture 1 (1-3) subjects Lecture 1.5 - Sustainability & Law (MEEM) 2 2 1  MC QUESTIONS LECTURE 1 – Q1 Which of the following statements is correct? 1. the distinction between ‘anthropocentrism’ and ‘ecocentrism’ is relevant to how we understand the empirical scope of environmental law. 2. The recognition of trees or animals or rivers as having legal personality (and legal standing in a court of law) is ultimately a normative characteristic decided within the specific (state) jurisdiction of environmental law. a) Only statement 1 is correct b) Only statement 2 is correct c) Both statements are correct d) Both statements are incorrect Lecture 1.5 - Sustainability & Law (MEEM) 3 3 MC QUESTIONS LECTURE 1 – Q2 Which of the following alternatives names an environmental compartment? a) Air b) Energy c) Exhaustion d) Nature Lecture 1.5 - Sustainability & Law (MEEM) 4 4 2  MC QUESTIONS LECTURE 1 – Q3 Which set of three concerns is generally understood as the core concern of environmental law? a) energy-efficiency, exhaustion, and nuisance b) exhaustion, pollution and nuisance c) nuisance, exhaustion, and waste d) waste, energy-efficiency, and nature conservation Lecture 1.5 - Sustainability & Law (MEEM) 5 5 MC QUESTIONS LECTURE 1 – Q4 Which of the following statements about the legal status of Sustainable development goals (SDGs) is correct? a) SDGs are part of binding international law. b) SDGs are regarded as international principles of environmental law. c) SDGs are policy principles, not legal principles. d) SDGs are legally binding to UN organisations only. Lecture 1.5 - Sustainability & Law (MEEM) 6 6 3  MC QUESTIONS LECTURE 1 – Q5 The so-called energy trilemma concerns the problem of serving the following three energy policy maxims: a) affordability, security, equality b) affordability, reliability, sustainability c) reliability, security, sustainability d) equality, reliability , sustainability Lecture 1.5 - Sustainability & Law (MEEM) 7 7 MC QUESTIONS LECTURE 1 – Q6 Which of the following statements is correct, when applying the functional area demarcation applied in Lecture 1? 1. a statute which coordinates environmental permits and permits for energy generation is about external integration 2. an environmental plan covering soil, water and air pollution is a type of external integration a. Only statement 1 is correct b. Only statement 2 is correct c. Both statements are correct d. Both statements are incorrect Lecture 1.5 - Sustainability & Law (MEEM) 8 8 4  MC QUESTIONS LECTURE 1 – Q7 A situation in which an environmental NGO undertakes a law- suit against a private company’s polluting industrial activities to protect the quality of the natural environment against such pollution qualifies as a matter within a… a) Symmetrical-horizontal environmental law relationship b) Symmetrical-vertical environmental law relationship c) Asymmetrical environmental law relationship d) ….. None of the above. Lecture 1.5 - Sustainability & Law (MEEM) 9 9 MC QUESTIONS LECTURE 1 – Q8 The notion that scientific uncertainty must not keep governments from taking measures to curb possible environmental dangers is legally known as… a. The precautionary principle b. The prevention principle c. The security principle d. The sustainability principle Lecture 1.5 - Sustainability & Law (MEEM) 10 10 5  MC QUESTIONS LECTURE 1 – Q9 According to D.J. Vogel: a) the EU does not accept precaution as a legal principle of environmental law. b) the EU regards the precautionary principle as safeguard against underregulation. c) the USA has more restrictive regulation than the EU partly because of bipartisan relations in the US congress. d) the USA regards the precautionary principle as acting upon ‘false negatives’. Lecture 1.5 - Sustainability & Law (MEEM) 11 11 WHAT’S NEXT? Lecture 2 – Legal relations & regulation See you next time! Lecture 1.5 - Sustainability & Law (MEEM) 12 12 6  10/23/2024 SUSTAINABILITY & LAW LECTURES: 1. BASIC CONCEPTS 2. LEGAL RELATIONS & REGULATION 3. TRANS-, INTER-, SUPRANATIONAL 4. PRESENTING ASSIGNMENTS LECTURER: dr. Imad Antoine Ibrahim Lecture 2.1 on Sustainability & Law (MEEM) 1 1 SUSTAINABILITY & LAW LECTURE 2. LEGAL RELATIONS & REGULATION 2.1 – Legal relations 2.2 – Risk regulatory options 2.3 – Regulatory strategies & relations 2.4 – Certification 2.5 – Q&A 2.6 – About the assignment Lecture 2.1 on Sustainability & Law (MEEM) 2 2 1  10/23/2024 MAIN BASIC TYPES OF LEGAL RELATIONS? [READ SUBTEXT!] FROM GENERAL AREAS OF LAW: LEGAL RELATIONS  PUBLIC LAW – Government 2 Citizen (Government 2 Government)  PRIVATE LAW – Citizen 2 Citizen (Some Government use?)  INTERNATIONAL LAW – State 2 State (Including private relations) (NB How about FUNCTIONAL areas of law? See lecture 1.2) Lecture 2.1 on Sustainability & Law (MEEM) 3 3 MAIN BASIC TYPES OF LEGAL RELATIONS? [READ SUBTEXT!] GENERAL AREAS OF LAW Public v. Private Standard setting v. Enforcement Lecture 2.1 on Sustainability & Law (MEEM) 4 4 2  10/23/2024 MAIN BASIC TYPES OF LEGAL RELATIONS? [READ SUBTEXT!] FROM GENERAL AREAS OF LAW: LEGAL RELATIONS  PUBLIC LAW – Government 2 Citizen (hierarchy)  Constitutional environmental law sovereign powers; human rights; checks&balances  Administrative environmental law executive powers; instruments; principles; legal protection functional law: social-welfare, environment, competition,.....  Criminal environmental law retributive powers; sanctions; principles; legal protection Lecture 2.1 on Sustainability & Law (MEEM) 5 5 MAIN BASIC TYPES OF LEGAL RELATIONS? [READ SUBTEXT!] FROM GENERAL AREAS OF LAW: LEGAL RELATIONS  PRIVATE LAW – Citizen 2 Citizen (reciprocity/equality)  General subjects personhood/family, organisation (e.g. corporations) property contracts tort & sustainability & law / environmental law Lecture 2.1 on Sustainability & Law (MEEM) 6 6 3  10/23/2024 MAIN BASIC TYPES OF LEGAL RELATIONS? FROM GENERAL AREAS OF LAW: LEGAL RELATIONS  INTERNATIONAL LAW – State 2 State (reciprocity/equality) More in Lectures 3 & 4  International/Global  International = interstate  Global = across the globe/universally to all  Transnational  Across state boundaries – from various sources (public/private)  Supranational  Between states – separate legal order (transfer of sovereignty) Lecture 2.1 on Sustainability & Law (MEEM) 7 7 MAIN BASIC TYPES OF LEGAL RELATIONS? FROM GENERAL AREAS OF LAW: LEGAL RELATIONS  Next step is about the types and choices of types of rules…..  Between public and private law  Between cause-aimed and effect-aimed regulation  And combinations of these two…. Lecture 2.1 on Sustainability & Law (MEEM) 8 8 4  10/23/2024 SUSTAINABILITY & LAW LECTURE 2. LEGAL RELATIONS & REGULATION 2.1 – Legal relations 2.2 – Risk regulatory options 2.3 – Regulatory strategies & relations 2.4 – Certification 2.5 – Q&A 2.6 – About the assignment Lecture 2.2 on Sustainability & Law (MEEM) 1 1 RISK REGULATORY OPTIONS FROM GENERAL AREAS OF LAW TO REGULATORY OPTIONS  Next step is about the types and choices of types of rules…..  Between public and private law  Between cause-aimed and impact-aimed regulation  And combinations of these two…. Lecture 2.2 on Sustainability & Law (MEEM) 2 2 1  10/23/2024 LEGAL RELATIONS & RISK REGULATORY OPTIONS >Types of legal instruments: (beyond) national< Lecture 2.2 on Sustainability & Law (MEEM) 3 3 LEGAL RELATIONS & RISK REGULATORY OPTIONS >Types of legal instruments: (beyond) national< Lecture 2.2 on Sustainability & Law (MEEM) 4 4 2  10/23/2024 LEGAL RELATIONS & RISK REGULATORY OPTIONS >Types of legal instruments: (beyond) national< Lecture 2.2 on Sustainability & Law (MEEM) 5 5 LEGAL RELATIONS RISK REGULATORY OPTIONS >cause-aimed public< regulatory entrance barriers e.g., license to introduce new substances Performance/process requirements e.g., best available techniques; (reporting on) industrial process; public participation; first be inspected/certified officially/EIA formal delicts e.g., notification requirements with sanction Lecture 2.2 on Sustainability & Law (MEEM) 6 6 3  10/23/2024 LEGAL RELATIONS RISK REGULATORY OPTIONS >cause-aimed private< private standards e.g., first be tested/certified to be allowed into a B2B supply chain (e.g., certification) Industrial/insurance standards e.g., B2B supply-chain requirements (underlying certification) e.g., insurance/low premium only upon compliance Standard industrial practice e.g., skill, care prudence diligence within reason to be expected of contractor/operator Lecture 2.2 on Sustainability & Law (MEEM) 7 7 LEGAL RELATIONS RISK REGULATORY OPTIONS >impact-aimed public< harm to public interest e.g., polluting (drinking) water, soil, air Result/state of affairs requirements e.g., (not exceed) max noise volume on nearby houses (e.g., in crown decree); increase energy efficiency (subsidy) substantive delicts e.g., serious harm to natural habitats Lecture 2.2 on Sustainability & Law (MEEM) 8 8 4  10/23/2024 LEGAL RELATIONS RISK REGULATORY OPTIONS >impact-aimed private< Damaging property rights, life, liberty, privacy e.g., pollution causing property damage; nuisance v privacy warrantee breach e.g., product is not performing as promised under a warrantee provision (e.g., less energy efficient or ‘clean’) failure of contractual result e.g., non-conformity in performance (e.g., service, product) Lecture 2.2 on Sustainability & Law (MEEM) 9 9 LEGAL RELATIONS RISK REGULATORY OPTIONS >how to legislate/regulate?< (de-) escalate & (re-) combine Lecture 2.2 on Sustainability & Law (MEEM) 10 10 5  10/23/2024 LEGAL RELATIONS RISK REGULATORY OPTIONS >how to (de) escalate (1)< public 4 3 cause-aimed impact-aimed 2 1 private Lecture 2.2 on Sustainability & Law (MEEM) 11 11 LEGAL RELATIONS RISK REGULATORY OPTIONS >how to (de) escalate (2)< public 4 3 cause-aimed impact-aimed 2 1 private Lecture 2.2 on Sustainability & Law (MEEM) 12 12 6  10/23/2024 LEGAL RELATIONS RISK REGULATORY OPTIONS >how to (re) combine< public 4 3 cause-aimed impact-aimed 2 1 private Lecture 2.2 on Sustainability & Law (MEEM) 13 13 LEGAL RELATIONS SKIP! RISK REGULATORY OPTIONS >prospective versus retrospective< Lecture 2.2 on Sustainability & Law (MEEM) 14 14 7  10/23/2024 LEGAL RELATIONS PROSPECTIVE V RETROSPECTIVE Prospective rule-making… to prescribe behaviour - either cause-aimed - or impact-aimed Retrospective rule-making… to enable sanctioning - either violation of cause-aimed rules - or violation of impact-aimed rules NB both types need to be in force before becoming effective Lecture 2.2 on Sustainability & Law (MEEM) 15 15 LEGAL RELATIONS SKIP! RISK REGULATORY OPTIONS >prospective versus retrospective< Lecture 2.2 on Sustainability & Law (MEEM) 16 16 8  10/23/2024 LEGAL RELATIONS SKIP! RISK REGULATORY OPTIONS  Risk regulatory options (cause- and impact-aimed) as final stage of law-making: through rules of conduct, defining rights & obligations.  As prohibitions, commands and permissions, following their norm- object and norm-operator combination, with distinct:  norm-subjects  Who is regulated? I.e. some individual, group, or all?  norm-conditions  When does the norm apply? I.e. circumstance, time/place  norm-sanctions  A ‘hard’ or ‘soft’ norm? Sanctionable, by whom/how? Lecture 2.2 on Sustainability & Law (MEEM) 17 17 LEGAL RELATIONS SKIP! RISK REGULATORY OPTIONS  Risk regulatory options (cause- and impact-aimed) as final stage of law-making: through rules of conduct, defining rights & obligations.  As prohibitions, commands and permissions, following their norm- object and norm-operator combination.. 4 normative positions: Lecture 2.2 on Sustainability & Law (MEEM) 18 18 9  10/23/2024 LEGAL RELATIONS SKIP! RISK REGULATORY OPTIONS  Risk regulatory options (cause- and impact aimed) are the final stage of law-making: through rules of conduct.  Also consider that there are rules of conduct that apply to government: such as  In case of a subsidy or tax scheme  And that rules of conduct will follow upon procedures that may involve public and expert participation and court cases.  Procedures as conditions for applying rules of power  And that to know what rules of conduct apply, may require to analyse various legal acts  Which relates to what is known as ‘stratified rulemaking’ Lecture 2.2 on Sustainability & Law (MEEM) 19 19 LEGAL RELATIONS RISK REGULATORY OPTIONS  Stratified rule making… Lecture 2.2 on Sustainability & Law (MEEM) 20 20 10  10/23/2024 LEGAL RELATIONS RISK REGULATORY OPTIONS FROM RISK REGULATORY OPTIONS TO REGULATORY STRATEGIES & RELATIONS  Next step is about regulation…  Looking beyond legal instruments  To regulatory strategies. Lecture 2.2 on Sustainability & Law (MEEM) 21 21 11  10/23/2024 SUSTAINABILITY & LAW LECTURE 2. LEGAL RELATIONS & REGULATION 2.1 – Legal relations 2.2 – Risk regulatory options 2.3 – Regulatory strategies & relations 2.4 – Certification 2.5 – Q&A 2.6 – About the assignment Lecture 2.3 on Sustainability & Law (MEEM) 1 1 REGULATORY STRATEGIES & RELATIONS FROM RISK REGULATORY OPTIONS TO REGULATORY STRATEGIES & RELATIONS  Next step is about regulation…  Looking beyond legal instruments  To regulatory strategies  And regulatory instruments. Lecture 2.3 on Sustainability & Law (MEEM) 2 2 1  10/23/2024 REGULATORY STRATEGIES & RELATIONS Lecture 2.3 on Sustainability & Law (MEEM) 3 3 REGULATORY STRATEGIES & RELATIONS Lecture 2.3 on Sustainability & Law (MEEM) 4 4 2  10/23/2024 REGULATORY STRATEGIES & RELATIONS Lecture 2.3 on Sustainability & Law (MEEM) 5 5 REGULATORY STRATEGIES & RELATIONS Lecture 2.3 on Sustainability & Law (MEEM) 6 6 3  10/23/2024 MAIN REGULATORY STRATEGIES? FIVE TYPES OF BEHAVIOURAL INCENTIVES NB Strategy before instruments! Each (incentive-based) strategy comes with its own instruments… Lecture 2.3 on Sustainability & Law (MEEM) 7 7 REGULATORY STRATEGIES? 5 TYPES INCENTIVES  Incentive of being knowledgeable - information-based regulation (awareness)  Incentive of social commitment (conviction) - Community-based/self regulation  Incentive of economic impact (cost/gain) - Competition-based/Indirect regulation  Incentive of legal bindingness (authority) - Hierarchy-based/Direct regulation  Incentive of functional/physical code (architecture) - Techno-regulation Lecture 2.3 on Sustainability & Law (MEEM) 8 8 4  10/23/2024 INFORMATION-BASED REGULATORY APPROACH  POLICY & LEGAL - Education - Public awareness campaigns - Access to government information - Government (independent) ‘state of the environment’ reporting - public participation facilities - environmental impact assessments - legally required private/corporate environmental impact reporting This regulatory type is not discussed any further… Lecture 2.3 on Sustainability & Law (MEEM) 9 9 COMMUNITY-BASED/SELF REGULATORY APPROACH  PRIVATE/SELF REGULATION - Contracts & property law - CSR action (beyond public law/social license) - NGO-action (Naming & Shaming/Praising) - Industrial standards & Certification  CO-REGULATION (hybrid?) - Covenants (industry plus... Govt/NGO?) - Metaregulation (EU: New Approach) Lecture 2.3 on Sustainability & Law (MEEM) 10 10 5  10/23/2024 COMPETITION-BASED REGULATORY APPROACH  Government (re)allocation - Subsidies & Taxes - Tendering/procurement  Inherent incentive - Tradable Public Allowances - Tort law & Insurance law Lecture 2.3 on Sustainability & Law (MEEM) 11 11 HIERARCHY-BASED REGULATORY APPROACH (1)  THE REGULATORY CHAIN 1. Planning 2. Statutory basis 3. Setting standards 4. Permitting 5. Implementation 6. Enforcement 7. Evaluation Lecture 2.3 on Sustainability & Law (MEEM) 12 12 6  10/23/2024 HIERARCHY-BASED REGULATORY APPROACH (2)  THE REGULATORY CHAIN (first 3 links) 1. Planning strategic / operational (binding?) 2. Statutory basis detailed and/or general code with(out): principles, duty of care, coordination, specific environmental competences 3. Setting standards quality/immission standards v discharge/emission standards Lecture 2.3 on Sustainability & Law (MEEM) 13 13 HIERARCHY-BASED REGULATORY APPROACH (3)  THE REGULATORY CHAIN (next 4 links) 4. Permitting installations activities; build/operate; new/revise temporary/permanent; personal/object; reservations. 5. Implementation fine-tuning; standards; supervision 6. Enforcement supervise & enforce: public & private 7. Evaluation macro-micro levels; Env. Impact Assessment (EIA) Lecture 2.3 on Sustainability & Law (MEEM) 14 14 7  10/23/2024 ARCHITECTURE/TECHNO- REGULATORY APPROACH  CONSTITUTIVE - Unknown prohibitions or commands Impossibility to act otherwise…  REGULATIVE - Deliberative choice (channelled) Possibility to act but with delay/extra effort This regulatory type is not further discussed… Lecture 2.3 on Sustainability & Law (MEEM) 15 15 CROSS REFERENCE WITH LEGAL RELATIONS APPROACH Reg.Strat Hierarchy- Competition- Community- based based based Leg.Relat regulation regulation regulation Constitutional & ++ + -/+ administrative law Criminal ++ + -- law Civil/private -/+ + ++ Law Lecture 2.3 on Sustainability & Law (MEEM) 16 16 8  10/23/2024 REGULATEE CONTEXT (DE-) ESCALATION) Lecture 2.3 on Sustainability & Law (MEEM) 17 17 HYBRIDITY? HYBRIDS ARE EVERWHERE ALSO IN SUSTAINABILITY LAW Combining different strategies Hierarchy- & Competition-based regulation e.g., Emissions allowances trading Competition- & Community-based regulation e.g., Certification (see next slides) Community- & Hierarchy-based regulation e.g., co-regulation / coerced regulation Lecture 2.3 on Sustainability & Law (MEEM) 18 18 9  10/23/2024 HYBRIDITY? AN EXAMPLE OF HYBRID REGULATION AS RELEVANT TO ENVIRONMENTAL/ENERGY LAW Combining different strategies: certification example Hybrid of public & private; hierarchy-, competition-, community-based regulation Lecture 2.3 on Sustainability & Law (MEEM) 19 19 LEGAL RELATIONS RISK REGULATORY OPTIONS FROM REGULATORY STRATEGIES & RELATIONS TO CERTIFICATION  Next step is about a particular example of a hybrid regulatory strategy: certification  Of networked certification  In various types  With various results Lecture 2.3 on Sustainability & Law (MEEM) 20 20 10  10/23/2024 SUSTAINABILITY & LAW LECTURE 2. LEGAL RELATIONS & REGULATION 2.1 – Legal relations 2.2 – Risk regulatory options 2.3 – Regulatory strategies & relations 2.4 – Certification 2.5 – Q&A 2.6 – About the assignment Lecture 2.4 on Sustainability & Law (MEEM) 1 1 HYBRIDITY? AN EXAMPLE OF HYBRID REGULATION AS RELEVANT TO ENVIRONMENTAL/ENERGY LAW Combining different strategies: certification example Often a hybrid of public & private; hierarchy-, competition-, and/or community-based regulation Lecture 2.4 on Sustainability & Law (MEEM) 2 2 1  10/23/2024 Contract Accreditation Primary producer (in state B) regarding Auditor organisation audit and use of certificate brand Purchase contract Y demands certification of Contract product as regarding agreed licence of brand in contract B Copyright Private In between enterprises certification (manufacturing, importer, Contractual program Certified Standard setting product wholesale, etc.) condition = organisation Standard + Certification (trade) mark Brand Law Purchase contract X Demands that the product Is certified Retailer (in state A) Complaints/appeal ---------------------- Lecture 2.4 on Sustainability & Conflict settlement Law (MEEM) 3 3 HYBRIDITY? CERTIFICATION Certification as regulation: components A product/service/person/organisation/plant/etc.… Supply-chain contract Certification contracts Standard setting Conformity test/Audit Certificate Brand ? Licence ? Lecture 2.4 on Sustainability & Law (MEEM) 4 4 2  10/23/2024 HYBRIDITY? CERTIFICATION Certification as regulation: context Tim Bartley Lecture 2.4 on Sustainability & Law (MEEM) 5 5 HYBRIDITY? CERTIFICATION Certification is more than indication of quality….. Certification is a type of social regulation! Not only supply-chain standards - about technical functionality - Also about social values (environment, labour, health, safety) - Plus interactive: esp. governments and NGO’s (and/or), often government push or pull - Certification is ‘crowding out’ traditional regulation… (?) Lecture 2.4 on Sustainability & Law (MEEM) 6 6 3  10/23/2024 HYBRIDITY? CERTIFICATION Advantage for companies when ‘CSR-claim’ is supported by certification (especially 3rd ) 1st party: self-certification 2nd party: branch-certification 3rd party: independent certification Certification: package of ‘values’ association  developments of standards  accreditation  admission  use of brand Lecture 2.4 on Sustainability & Law (MEEM) 7 7 HYBRIDITY? CERTIFICATION 5 mechanisms with positive impact 1. Managers desire certification (adjustment of behavior) 2. Support for alternative production models 3. Incentive to invest in quality improvement 4. Platform for mobilisation (‘a force of change’)* 5. Impact on governments / direct regulation * vs Rainforest Alliance concerning Lipton tea (corruption &Lawsexual harassment) Lecture 2.4 on Sustainability & (MEEM) 8 8 4  10/23/2024 HYBRIDITY? CERTIFICATION Certification is also marketing - compulsory or voluntary… Certification by government or in the market? - in the market, in competition - by government, upon task allocation Legitimacy? - ‘one dollar one vote  one man one vote’ - race to the bottom? (strict  participatory) NB conformity test v certification Lecture 2.4 on Sustainability & Law (MEEM) 9 9 HYBRIDITY? CERTIFICATION Do not organise conformity test within the market if and when: - Conflicting interests between private public interest - Acute problems with need immediate setting & application of standards - Absolute adherence to norms is required (e.g., EU v MS) - Prohibitive conflict with higher norms Varieties in respect of how public authorities value private certificates - Hard – supervisor can trust certificates - Soft – merely indicative use of certification … (next slide) Lecture 2.4 on Sustainability & Law (MEEM) 10 10 5  10/23/2024 HYBRIDITY? CERTIFICATION 4 types of conformity tests in respect of public appraisal - Unconditional admission/recognition certificate alone is binding - Conditional admission/recognition Marginal test of expert opinion remains - Supervisory test Only indicative for need to enforce - Placing in market/self-regulation Mere private positioning Lecture 2.4 on Sustainability & Law (MEEM) 11 11 HYBRIDITY? CERTIFICATION EU: securing certification by ‘publicisation’ EU-regulation concerning Accreditation & Normalisation (EU- Regulation 765/2008) Setting out the requirements for accreditation and market surveillance relating to the marketing of products Based upon article 114 en 207 TFEU: internal market and trade policy EU: Every EU-MS shall have a public accreditation office Lecture 2.4 on Sustainability & Law (MEEM) 12 12 6  10/23/2024 HYBRIDITY? CERTIFICATION Lecture 2.4 on Sustainability & Law (MEEM) 13 13 HYBRIDITY? CERTIFICATION 5:46PM EDT October 24. 2012 - LAS VEGAS A USA TODAY examination shows that thousands of "green" builders win tax breaks, exceed local restrictions and get expedited permitting under a system that often rewards minor, low-cost steps. Lecture 2.4 on Sustainability & Law (MEEM) 14 14 7  10/23/2024 HYBRIDITY? CERTIFICATION Lecture 2.4 on Sustainability & Law (MEEM) 15 15 HYBRIDITY? CERTIFICATION Lecture 2.4 on Sustainability & Law (MEEM) 16 16 8  10/23/2024 LEGAL RELATIONS RISK REGULATORY OPTIONS FROM REGULATORY STRATEGIES & RELATIONS TO CERTIFICATION  We are done with Lecture 2, aside from some questions in Lecture 2.5 and an instruction on the assignment in 2.6 Lecture 2.4 on Sustainability & Law (MEEM) 17 17 9  10/23/2024 SUSTAINABILITY & LAW LECTURE 2. LEGAL RELATIONS & REGULATION 2.1 – Legal relations 2.2 – Risk regulatory options 2.3 – Regulatory strategies & relations 2.4 – Certification 2.5 – Q&A 2.6 – About the assignment Lecture 2.6 on Sustainability & Law (MEEM) 1 1 ASSIGNMENT A presentation (Monday 16/10/2023; lecture 5) and a written paper (before Monday 13-11-2023) by a self-organised group of 4-5 persons with no more than 2 persons from the same country.... About an example of … see next slide Check, for the official and detailed description the WORD document about the assignment in CANVAS Lecture 2.6 on Sustainability & Law (MEEM) 2 2 1  10/23/2024 ASSIGNMENT About an example of a sustainability project to enhance sustainable energy advancement (in production, distribution or storage), water sanitation, or environmental care, with a focus on the types of legal instruments of a competition-based or community-based (self/co-) regulatory nature, used to further this or these projects. The examples may be found on a local, regional, national, trans-, supra- or international level. a certification scheme concerning sustainable/renewable energy, water sanitation, or environmental care, with transnational significance, involving both public and private parties, and combining at least two of the following three types of regulation: hierarchy-, competition-, community-based regulation. And.. about presentation (see next slide) Lecture 2.6 on Sustainability & Law (MEEM) 3 3 ASSIGNMENT Presentation during 5th lecture (MAX 5-10 minutes!) Position project/scheme (history/objective/participants) Identify/elaborate (as legal instrument: aim, type, character) Practical (how to work in practice – ideally or in reality) SWOT (analysis) Statements in ex ante or ex post evaluation (improvements) After each presentation there is max 5 minutes for Q&A And about the paper (see next slide) Lecture 2.6 on Sustainability & Law (MEEM) 4 4 2  10/23/2024 ASSIGNMENT Paper 2.000-3.000 words (excluding references) NO MORE! Issues of previous slide in separate paragraphs Submit before Monday 13/11/2023 Each paper will be graded sufficient or insufficient/improve – the key thing is to learn by making a sufficiently serious effort And about the workload (see next slide) Lecture 2.6 on Sustainability & Law (MEEM) 5 5 ASSIGNMENT And.. about workload This course is a 3EC course. 1 EC = 28 hrs, so in all 84 hrs, and 8.4 hrs across 10 weeks This includes contact hours (say 5 x 4 =) 20 hrs, examination hours (say 4 – although the exam will only take a max of 3 hrs), leaving 60 hours for self-study and the assignment. When you need 9 hrs studying related to each of the first 4 lectures and 16 hrs for the exam (so 9x4=36+16=42), this still leaves 18 hrs for the assignment, which with the whole group makes for (3-4 x 18 =) 54-72 hrs for the team effort which is definitively enough. Of course, everybody has her/his own study-style, but make sure you all agree about the group effort. Lecture 2.6 on Sustainability & Law (MEEM) 6 6 3  10/23/2024 WHAT’S NEXT? Lecture 3 – Trans-, Inter- and supranational Environmental law 1 See you next time! Lecture 2.6 on Sustainability & Law (MEEM) 7 7 4  10/23/2024 SUSTAINABILITY LAW LECTURES: 1. BASIC CONCEPTS 2. LEGAL RELATIONS & REGULATION 3. TRANS-, INTER-, SUPRANATIONAL-1 4. TRANS-, INTER-, SUPRANATIONAL-2 5. PRESENTING ASSIGNMENTS LECTURER: dr. Imad Antoine Ibrahim Lecture 3.1 on Sustainability & Law (MEEM) 1 1 TRANS-, INTER-, SUPRA- NATIONAL ENVIRON’TAL LAW 3. Trans-, Inter-, Supranational Environmental Law (‘TISEL’) 3.1 - What is…TISEL (Ch1 /L3) [L=Lecture number] + 3.2 - Roots & trends in TISEL (Ch2/L3) 3.3 - Stakes in TISEL (Ch3/L3) 3.4 – Q&A L3 4.1 - Principles of TISEL (Ch4/L4) 4.2 - Conclusions and Q&A L4 on TISEL (Ch8/L4) 4.3 – Interstate climate change law (text to follow) Lecture 3.1 on Sustainability & Law (MEEM) 2 2 1  10/23/2024 WHAT IS TISEL? SOME EXAMPLES (1)  How about jurisdictional scope1 and nature2 of …  1. (not) universal 2. (no) binding norms ? Lecture 3.1 on Sustainability & Law (MEEM) 3 3 WHAT IS TISEL? SOME EXAMPLES (2)  How about jurisdictional scope and nature of … Lecture 3.1 on Sustainability & Law (MEEM) 4 4 2  10/23/2024 WHAT IS TISEL? SOME EXAMPLES (3)  How about jurisdictional scope and nature of … Lecture 3.1 on Sustainability & Law (MEEM) 5 5 WHAT IS TISEL? SOME EXAMPLES (4)  How about jurisdictional scope and nature of … Lecture 3.1 on Sustainability & Law (MEEM) 6 6 3  10/23/2024 WHAT IS TISEL? SOME DEFINITIONS  International/Global (formally state binding)  International as interstate – e.g., transboundary concerns  Global as across the globe – universally intended applicable to all  Transnational (informally binding)  Relevant beyond state boundaries – various informal sources (public/private/public-private) [see next 3 slides]  E.g., substate & NGO co-operation; FSC certification  Supranational (formally state and citizen binding)  Between states – separate legal order (transfer of sovereignty)  E.g., European Union (EU) Spectrum: ‘Hard law’ v ‘Soft law’ – binding and enforceable? Lecture 3.1 on Sustainability & Law (MEEM) 7 7 TISEL - DEFINITIONS... Noortmann (2015 at 68) “Transnational law (TL) constitutes an independent legal realm, separated from, but partially overlapping with national law, public international law, and private international law. It neither includes all these legal realms as a kind of all-encompassing legal system, nor does it concur with an exclusive lex mercatoria. […] Transnational law is the legal realm where all actors meet, but not necessarily all of the time, i.e. some (like states) can move in an out other legal realms, others are confined to legally engage other transnational actors in this specific realm.” Lecture 3.1 on Sustainability & Law (MEEM) 8 8 4  10/23/2024 TISEL - DEFINITIONS... Transnational: A partial cross-section – as ‘informal law’ Level↓ Nature→ Public Private 1 2 National 1’ 2’ 3’ 4’ International 3 4 1’-2’-3’-4’: rules, norms, standards not as formal law, but suitable for informal adoption by others (to next perhaps become formal (inter/supra)national) Lecture 3.1 on Sustainability & Law (MEEM) 9 9 TISEL - DEFINITIONS... Examples Lecture 3.1 on Sustainability & Law (MEEM) 10 10 5  10/23/2024 TISEL - DEFINITIONS... Spectrum: ‘Hard law’ v ‘Soft law’ – binding & enforceable? Binding norm?  Yes No  Enforceable? Yes +/+ -/+ 1 2 No 3 4 +/- -/- Binding norms (1 & 3): ‘hard law’, but 3 seems flawed (no ‘legal bite’!) Non-binding norms (2 & 4): ‘soft law’; 2 makes no legal sense (what basis?) Hey: many hybrid flavours...: between 1 and 3 and 1 and 2.. 1=hardest Lecture 3.1 on Sustainability & Law (MEEM) 11 11 TISEL - ACTORS & SOURCES Adhere to generally accepted main sources of international law.....  Treaties  Custom  General principles  Legal doctrine (incl. leading cases)  Decisions of international organisations  Ius cogens As public international law: of states/governments and int. organisations Next to private actors: of NGOs, Firms, Individuals (Transnational law?) Distinct from private internat. law: which can involve environmental law Lecture 3.1 on Sustainability & Law (MEEM) 12 12 6  10/23/2024 TISEL - ACTORS & SOURCES Can international law directly legally bind citizens? [rights/obligations]  Main rules (‘dualism doctrine’) - Treaties are only binding to states involved (‘Vienna Convention’) - To bind their citizens takes national transposition - by state rule-making  Exception: ‘direct-effect’ (‘monism doctrine’) - only if state constitution ‘says so’ (& within limits) - e.g., only if clear/unconditional rights & obligations + only rules of treaties and international organisations (not custom) - or if part of a supranational organisation upon (partial) transfer of national sovereign powers (i.e., legislate, execute, judicial) - e.g., EU; EU rules/decisions > member state rules/decisions Lecture 3.1 on Sustainability & Law (MEEM) 13 13 TISEL - ACTORS & SOURCES Can international law directly legally bind citizens? [rights/obligations] Dualism Monism International law provisions Transpose by state law Direct effect No ‘ifs’ If: in ‘constitution’ and acc to possible constraints* As national law obligation or As inter/supranational law rights obligation or rights * Constraints e.g.: only treaty + only clear & unconditional provisions Lecture 3.1 on Sustainability & Law (MEEM) 14 14 7  10/23/2024 TISEL - OBJECT & FOCUS  International Environmental Law (TISEL) is about  Study object: negative impacts (pollution, depletion) by humans on the environment (nuisance generally national)  Purpose: with the objective of protecting and conserving (and improving) the environment  Currently TISEL has an anthropocentric focus, and a focus on global interdependencies (Earth as a system of systems: oceans, climate)  e.g., GHG emissions’ impacts on climate; tropical rainforest & medical products; global trade & protecting indigenous peoples  Still, there is International nature conservation law… Lecture 3.1 on Sustainability & Law (MEEM) 15 15 TISEL - ACTORS & SOURCES  TISEL may be found in [Int = International]  Int/Global Treaties - e.g., MEAs (multilateral environmental agreements), COP (decisions of parties to conferences)  Int/Global Decisions of international organisations - e.g., UN-decisions; World Bank OP&Ps (Operational Policies & Procedures)  Int/Global Customary law - e.g., no-harm principle; precautionary principle (?)  Transnational Standards/certification by multi-stakeholder organisations - e.g., Forest Stewardship Council (FSC) Both in specified environmental law rules, but also in int. maritime law, int. human rights law, int. trade law, int. armed conflict law,... etc. Lecture 3.1 on Sustainability & Law (MEEM) 16 16 8  10/23/2024 WHAT’S NEXT? Lecture 3.2 – TISEL Roots & Trends See you then & there! Lecture 3.1 on Sustainability & Law (MEEM) 17 17 9  10/23/2024 TRANS-, INTER-, SUPRA- NATIONAL ENVIRON’TAL LAW 3. Trans-, Inter-, Supranational Environmental Law (‘TISEL’) 3.1 - What is…TISEL (Ch1+/L3) [L=Lecture number] 3.2 - Roots & trends in TISEL (Ch2/L3) 3.3 - Stakes in TISEL (Ch3/L3) 3.4 – Q&A L3 4.1 - Principles of TISEL (Ch4/L4) 4.2 - Conclusions and Q&A L4 on TISEL (Ch8/L4) 4.3 – Interstate climate change law (text to follow) Lecture 3.2 on Sustainability & Law (MEEM) 1 1 TISEL - ROOTS & TRENDS (2.2) Early beginnings (2.2.1) Nature conservation (self-study; key take-aways)  19th – century nature conservation/wildlife colonial treaties (esp. Africa)  Early 20th – aside useful/harmful wildlife; also habitats (London convention 1933)1; also for the Americas (Western Hemisphere Convention 1940)2  Later 20th century – Ramsar (1971 Wetlands)3, CITES (1973 international trade in endangered species)4 – protection also by regulating use and trade, both flora and fauna  Last 20th century – Biodiversity (1992)5 – protected areas and species (in situ and ex situ; latter also genetic resources – seed banks, zoos, botanical gardens) NB Nagoya protocol (2010)6 ‘fair & equitable sharing’ Lecture 3.2 on Sustainability & Law (MEEM) 2 2 1  10/23/2024 TISEL - ROOTS & TRENDS  (2.2.2) NGOs  Since early 20th century: 1913 nature conservation organisations in Europe & North America  mid 20th: 1959 IUCN1 (Int. Union for Conservation of Nature and Natural Resources - init. 1948 IUPN)2 as hybrid org. (NGO-Gov’ts)  General (e.g., IUCN) v. issue specific NGOs (Wetlands, WWF, Greenpeace). Change from participatory  activist  NGO use grievance-mechanisms and/or observer-participation in internat. organisations (e.g., COP; e.g., Global Forest Coalition, FSC)  Expert networks as ‘epistemic communities’ for informal law (e.g., standard setting) - often hybrid with government and industry (e.g., IUCN World Commission on Environmental Law – Aarhus convention compliance)3 Lecture 3.2 on Sustainability & Law (MEEM) 3 3 TISEL - ROOTS & TRENDS  (2.3) Transboundary to Global (T2G1)  Late 19th century prime focus was transboundary  e.g., fishing stock in shared rivers; 1885 Salmon Fishing in the Rhine; Boundary Waters Treaty 1909 (US/UK - framework).  Arbitration cases on transboundary concerns:  e.g., 1941 Trail Smelter (USA v CAN): No Harm principle “no state has the right to use or permit the use of its territory in such a manner as to cause injury (…) on or in the territory of another or the properties therein..” v. Territoriality principle (sovereignty over own land) Lecture 3.2 on Sustainability & Law (MEEM) 4 4 2  10/23/2024 TISEL - ROOTS & TRENDS  (2.3) Transboundary to Global (T2G2)  Nowadays still many transboundary agreements  E.g., rivers, seas, mountains, nature conservation areas (e.g., KAZA: 5 African states+; Kavango Zambezi Transfrontier Cons. Area)  But also global concerns & agreements  From 1970 fears of global catastrophe: universal concern  Earth summits (UN 1 per decade since 1972) + adoption of MEAs  E.g., global MEAs - UNFCCC & Biodiversity Convention (both 1992)  E.g., regional MEAs – Antarctic Environmental Protocol (1991); (Rev.) African Nature Cons. & Nat. Res. Convention (1933-1968-2003) Lecture 3.2 on Sustainability & Law (MEEM) 5 5 TISEL - ROOTS & TRENDS  (2.3) Transboundary to Global (T2G3)  Global concerns UN-initiatives  Stockholm declaration on human environment (1972) – e.g., 1 environment & poverty (north-south) – framework for MEAs + basis for UNEP. Foci: nature conservation & pollution  WCED/Brundtland Commission report (1987) – ‘sustainable development’!  Rio-conference (1992) + ‘Agenda 21’ – Environmental principles 2  WSSD Johannesburg (2002) /Rio+20 (2012) : ‘The Future We Want’ 3 4 (‘Green Economy’, transparency, public participation, access2Justice)5 – towards MDGs & SDGs  Paris agreement (2015 – UNFCCC; COP21) esp. GHG reduction (2020) 6 ≤ +2C … Madrid COP25; Glasgow COP26; Sharm-el-Sheikh COP27; UAE COP28… Lecture 3.2 on Sustainability & Law (MEEM) 6 6 3  10/23/2024 TISEL - ROOTS & TRENDS  (2.3) Transboundary to Global (4)  Global concerns UN  MDGs (2002)  SDGs (2015)… Lecture 3.2 on Sustainability & Law (MEEM) 7 7 TISEL - ROOTS & TRENDS  (2.4) North-South  1972 Stockholm declaration: New International Economic Order (NIEO) - sovereign developing countries seek to regain control over natural resources - Poverty alleviation- also cause of environmental harm.. - New legitimate international institutions (e.g., UNEP)  1992 Rio convention improved socio-economic understanding of the needs of the South...  Principle of common but differentiated responsibilities justification financial instruments in MEAs  Particular attention: poorest African states (droughts, floods, depletion, land-grabbing) and SIDS1 (climate change) Lecture 3.2 on Sustainability & Law (MEEM) 8 8 4  10/23/2024 TISEL - ROOTS & TRENDS  (2.5) Non-state actors (1)  Next to states: international organisations, subnational organisations, NGOs, private sector (i.e., firms)  IDBs (International Development Banks),  e.g., World Bank (WB), standard setting for projects (e.g., EIAs) conditional to financing... in OP&Ps (binding to WB-staff)  Observers in international negotiations  e.g., COP20 (Lima) UNFCCC: 624 NGOs (no voting rights)  Regulatory schemes  Certification schemes (e.g., FSC – forest management; Marine Stewardship Council (MSC); WWF financial support community-based natural resource management;, e.g., KAZA) Lecture 3.2 on Sustainability & Law (MEEM) 9 9 TISEL - ROOTS & TRENDS  (2.5) Non-state actors (2)  Private corporations’ participation in Kyoto (1997/COP3) CDM projects  Clean development mechanism (art. 12 Kyoto)  Execution & certification  UN Global Compact (2000)  12.000 corporate & other stakeholder members from 170 states  To promote Corporate Social Responsibility  C40 Cities Climate Leadership Group / European Regional Development Group  Collaboration & knowledge sharing Lecture 3.2 on Sustainability & Law (MEEM) 10 10 5  10/23/2024 WHAT’S NEXT? Lecture 3.3 – Stakes in TISEL See you then & there! Lecture 3.2 on Sustainability & Law (MEEM) 11 11 6  10/23/2024 TRANS-, INTER-, SUPRA- NATIONAL ENVIRON’TAL LAW 3. Trans-, Inter-, Supranational Environmental Law (‘TISEL’) 3.1 - What is…TISEL (Ch1+/L3) [L=Lecture number] 3.2 - Roots & trends in TISEL (Ch2/L3) 3.3 - Stakes in TISEL (Ch3/L3) 3.4 – Q&A L3 4.1 - Principles of TISEL (Ch4/L4) 4.2 - Conclusions and Q&A L4 on TISEL (Ch8/L4) 4.3 – Interstate climate change law (text to follow) Lecture 3.3 on Sustainability & Law (MEEM) 1 1 TISEL - WHAT IS AT STAKE? (3.1-2) Evolving insights about what is at stake – Introduction/Harm etc.  Since about the 1970-ies  First: focus on pollution by substances in general  Next: concern hazardous substances  Now: ecosystems(-based) governance  Pollution.. through accidents & operations  harmful substances in products, in fertilizers/pesticides, paint, waste (products), light & noise, cooling water, organism transfer..  Regulatory disconnect & Anthropocene  environmental carrying capacity? E.g., Ozone (Antarctica) Lecture 3.3 on Sustainability & Law (MEEM) 2 2 1  10/23/2024 TISEL - WHAT IS AT STAKE?  (3.3) Response to accidents read only  (3.3.1.) Nuclear (e.g., Tsjernobyl & Fukushima; safety standards; liability/insurance systems)  (3.3.2) Shipping (e.g., Titanic.... Exxon Valdez; ditto)  (3.3.3) Industrial (e.g., Seveso; Bhopal – primarily (trans)national law)  (3.4) Response to & prevention of operational pollution (1970-ies  now) ..... Lecture 3.3 on Sustainability & Law (MEEM) 3 3 TISEL - WHAT IS AT STAKE?  (3.4) Response &... operational pollution (1970-ies  now)  (3.4.1) Best available Technology (BAT) & Best Environmental Practices (BEP) point pollution: end-of-pipe  BAT technology/substance (production process) [impact-  cause-aimed] Diffuse sources of pollution: environmental quality standards  BEP activity* [* ecosystem-based management]  (3.4.2) Banning/Phasing out substances/activities... (next slide)  (3.4.3) Internat. Agreed emission reductions... (next slide) Lecture 3.3 on Sustainability & Law (MEEM) 4 4 2  10/23/2024 TISEL - WHAT IS AT STAKE?  (3.4) Response &... operational pollution (1970-ies  now)  (3.4.2) Banning/Phasing out substances/activities e.g., POPs (persistent organic pollutants) Stockholm convention 2001 e.g., incineration/dumping of waste on seas – London convention 1972: ‘reverse listing’ system – allowing only listed (not new) e.g., ozone CFC – Vienna convention/Montreal protocol notable success; to repeat with GHGs?  (3.4.3) Internationally agreed emission reductions e.g., climate change: GHGs (Kyoto protocol; Paris Agreement) Lecture 3.3 on Sustainability & Law (MEEM) 5 5 TISEL - WHAT IS AT STAKE?  (3.5) Addressing trade in hazardous substances  Just read par. 3.5  no questions about 3.5 in exam Lecture 3.3 on Sustainability & Law (MEEM) 6 6 3  10/23/2024 TISEL - WHAT IS AT STAKE?  (3.6) Eco-system-based governance  1933 London convention: protect species  protect habitats  Recognition of (dynamic) interdependency/interaction in ecosystem (1935 A. Tansley; 1979 J. Lovelock)  Rio+20: holistic approach of Earth’s ecosystem  Ecosystem-based management  Ecosystem governance  Resilience of socio-ecological system(s) – not ‘fail safe’, but recoverable  Inter/transdisciplinary, adaptive, social learning, polycentric governance (involving all stakeholders) Lecture 3.3 on Sustainability & Law (MEEM) 7 7 TISEL - WHAT IS AT STAKE?  (3.6) Eco-system-based governance  Ecosystem-based management  Ecosystem governance  Challenge to IEL: e.g., freedom of fishing + maximum sustainable yield (MSY) Fish Stocks agreement 1995.  2005 Millennium Ecosystem Assessment (MEA): depletion of ecosystem services!  Socio-ecological thinking in IEL: e.g. 1992 Biodiversity convention..  COP2 (Nairobi 2000): Ecosystem management or governance?  COP10 (Buenos Aires, 2004) Integrated Ecosystem strategies – incl public participation (governance!) Lecture 3.3 on Sustainability & Law (MEEM) 8 8 4  10/23/2024 TISEL - WHAT IS AT STAKE?  (3.7) The Anthropocene  The Future We Want (Rio+20 Conference): “Integrity of the Earth’s ecosystem”  Humans are affecting the Earth’s systems in ways similar to natural phenomena (e.g. earthquakes, meteorites) e.g., Climate change, ozone layer depletion, ocean acidification, biodiversity loss  Hey calls for iterative, adaptive and participatory decision making processes (ecosystem governance). Lecture 3.3 on Sustainability & Law (MEEM) 9 9 WHAT’S NEXT? Lecture 3.4 – TISEL Q&A See you then & there! Lecture 3.3 on Sustainability & Law (MEEM) 10 10 5  10/23/2024 SUSTAINABILITY LAW LECTURES: 1. BASIC CONCEPTS 2. LEGAL RELATIONS & REGULATION 3. TRANS-, INTER-, SUPRANATIONAL-1 4. TRANS-, INTER-, SUPRANATIONAL-2 5. PRESENTING ASSIGNMENTS LECTURER: dr. Imad Antoine Ibrahim Lecture 4.1 on Sustainability & Law (MEEM)