reconstituting public space through environmental law in...

Reconstituting Public Space through Environmental Law in Europe and at

the international level

China-EU Law SchoolCELS Academic Conference 23-24 October, 2010

Prof. Dr. Ellen HeyErasmus School of Law

(c) Hey 1

Clarification

Public Space:

• Understood normatively as the space in which public power is to be exercised in the public interest and subject to legitimacy and accountability standards associated with the rule of law

(c) Hey 2

Thesis's

• Environmental law, both in Europe and at the international level, is reconstituting public space

– Not unique to environmental law, but very apparent in a.o. environmental law

• Classical international law discourse does not offer a proper language for analyzing these developments

– Lauterpacht’s private law analogies no longer serve to explain the full story

(c) Hey 3

Three examples

• UNECE – Environmental treaties: putting individuals and groups in society first with states as functional actors

• European Union water law: re-identifying relevant public actors in water management

• International environmental law: international organizations and the private sector

(c) Hey 4

Europe, the UNECE

• Moving individuals and groups in society up the ladder

• States as functional actors

• International institutions as arbitrators

(c) Hey 5

UNECE: relevant conventions

• 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki Convention)

• 1991 Protocol on Water and Health to the Helsinki, to the Helsinki Convention

• 1991 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)

• 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)

For the texts of the conventions and additional information see

http://www.unece.org/env/(c) Hey 6

European Union, re-identifying relevant public actors in water

management• First time in the history of the EU that all of

‘EU-territory’ and areas where member states exercise jurisdiction is subdivided into units of management other than states

• International river and marine commissions as implementers of EU law

• The system of management established is not multi-layered but multi-dimensional

(c) Hey 7

(c) Hey

WFD Europe’s river basins

Source: http://ec.europa.eu/environment/water/water-framework/facts_figures/pdf/2007_03_22_rbd_a3.pdf

8

(c) Hey

Europe’s (sub)regional seas and their drainage basins

Source: http://dataservice.eea.europa.eu/atlas/viewdata/viewpub.asp?id=719

9

The Directives :what, how and whenWater Framework Directive (WFD) Dir. 2000/60/EC

• Objective: protection of surface water (including transitional and coastal waters) and ground water and protection against flooding (art. 1)

• Means: ecosystem-based approach based on good ecological and chemical status and environmental quality objectives (art. 4) Commission v Luxembourg C-32/05

• Entered into effect: Dec. 22 2000

• Good environmental and chemical status to be met by 2015 (art. 4)

Marine Strategy Framework Directive (MFD) Dir. 2008/56/EC

• Objective: Protection of the marine environment (art. 1)

• Means: ecosystem-based approach based on good environmental status and environmental quality targets and indicators (art. 10 and 9)

• Entered into effect: July 15 2008

• good environmental status to be met by 2020 (art. 2(1))

(c) Hey 10

For information on EU water law see

http://ec.europa.eu/environment/water/index_en.htm

The Directives: who

WFD• Unit of management = natural

unit: River basin to be assigned to (international) river basin districts (RBD)→ competent authority (art.3)

• Duty for MS: to cooperate at level of RBD → international river commissions (art. 3)

• Unit for measuring compliance: Individual member state (MS) → obligations so designed as to ultimately address individual MS (see e.g. art 11 on programs of measures)

MFD• Unit of management = natural

unit: Marine (Sub)Region (M(S)R) (art. 4) → competent authority (art. 7)

• Duty for MS: to cooperate at level of M(S)R → regional seas commissions (art. 6)

• Unit for measuring compliance: Individual member state (MS) → obligations so designed as to ultimately address individual MS(see e.g. art. 5 on marine strategies)

(c) Hey 11

River

A –EU

B -EU

C -EU

D -EU

River Basin District(competent authority?)

International River Commission

EU WFD

(c) Hey

B

EU/EC party to River Convention

12

Regional Sea

A –EU

B -EU

C -EU

D -EU

Marine (Sub)Region(competent authority?)

Regional Sea Commission

EU MFD

(c) Hey

B

EU/EC party toRegional Sea Convention

13

Multilayered or Multidimensional Public governance

Multilayered system is strictly speaking, in terms of law, still in place

Result of WFD and MSFD: Multidimensional is what happens in practice

EU Law,

i.e. WFD and MSFD, ECJ, and EGTC Regulation and

Interreg

Member state law and sub-

state actors

International Law

European Law

Member state

(c) Hey 14

International Environmental Law: international organizations and the

private sector

• Multilateral Environmental Agreements and outsourcing the financial mechanisms to the World Bank

– From one vote one state to weighted voting or voting patterns in funds managed by the Bank

– Prototype Carbon Fund and the role of the private sector

• The Climate change regime, soft law and the private actors (c) Hey 15

International Environmental Law

• The legitimacy challenge

• Decision-making processes

• Accountability

• Towards an inclusive approach to sources

(c) Hey 16

Conclusions• International institutions and the private

sector are taking on roles that where hitherto exercised by states and thereby reconstituting public space often through so-called ‘soft law

– the local and the global are intertwined

• Public law analogies offer a discourse for analyzing these developments

– It allows us to think outside the box, e.g. should we maintain the immunities of international organizations if they are fulfilling state like roles?

• Relevance in EU context(c) Hey 17