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

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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

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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

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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

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Europe, the UNECE

• Moving individuals and groups in society up the ladder

• States as functional actors

• International institutions as arbitrators

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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

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WFD Europe’s river basins

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

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

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

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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))

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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)

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River

A –EU

B -EU

C -EU

D -EU

River Basin District(competent authority?)

International River Commission

EU WFD

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B

EU/EC party to River Convention

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Regional Sea

A –EU

B -EU

C -EU

D -EU

Marine (Sub)Region(competent authority?)

Regional Sea Commission

EU MFD

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B

EU/EC party toRegional Sea Convention

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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

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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

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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