Council of Europe/UNEP,Pan‐European biological and landscape diversity strategy,Invasive Alien Species

Abstract

The notion of sustainable development has become, over the last fifteen years, an integral part of international environmental law and policy. It is recognition that environmental issues do not exist in a vacuum, but rather arc part of much wider structural issues involving both economic and social dimensions. However, does this concern for sustainable development now mean that protecting the natural environment is no longer about ecological conservation per se, but rather is simply abour ensuring an adequate environment to maintain economic development? And if so, what of those environments where the economic value is a secondary consideration? Or where human activity has a disproportionate effect? Can sustainable development be interpreted in a way that reconciles these seemingly opposite demands? This paper examines these issues from the perspective of the 1991 Madrid Protocol on Environmental Protection to the 1959 Antarctic Treaty. It will suggest that sustainable development is a broader concept than one that simply requires an instrumental approach to environmental protection. In fact, the paper will conclude that sustainable development is a relatively meaningless notion if it docs not also contain a strong element of environmental conservation, and not only in such ecologically important areas as Antarctica.     

Alternatives for an Arctic Treaty – Evaluation and a New Proposal

This article examines the alternative proposals for an Arctic treaty that have been put forward by scholars and international organizations. The numerous proposals on record draw their inspiration from various sources: chief among these is the Antarctic Treaty System (ATS), but maritime regimes and even principles such as the common heritage of humankind are represented as well. The goal of the article is to examine the proposals in depth to ascertain what is viable and what is problematic in each. This analysis will help in outlining a new treaty that can accommodate both the political realities in the Arctic and the societal goals pursued in the region.     

Book Reviews

Book review in this Article
Toxic Torts, Charles Pugh & Martyn Day
The Effectiveness of International Environmental Agreements: A Survey of Existing Legal Instruments Ed. Peter H. Sand
International Law and the Antarctic Treaty System, Sir Arthur Watts
Environmental Protection and International Law. Eds: Winfried Lang, Hanspeter Neuhold and Karl Zemanek.     

Bi-polar Disorder? Is Bioprospecting an Emerging Issue for the Arctic as well as for Antarctica?

Bioprospecting has recently emerged as a new challenge for environmental governance in Antarctica. While considerable attention now surrounds this issue in Antarctica, there has been little, if any, debate on the question of whether bioprospecting is also an issue requiring a policy or regulatory response in the Arctic. This article briefly considers the emerging debate with respect to bioprospecting in Antarctica. It then provides a detailed survey of the nature and extent of bioprospecting in the Arctic, with a focus on the Nordic countries. It goes on to outline legislative developments in several Nordic countries concerning the regulation of access and benefit sharing in relation to naturally occurring biological materials of actual or potential value commonly referred to as wild genetic resources. It concludes by highlighting some potential disputes raised by the creation of such regimes, especially around the disputed waters of Svalbard. This analysis suggests that a more coordinated regional response may be warranted in the Arctic in the future.     

Tourist Representations and Public Space Regulation

This article illustrates the ways in which visual representations construct the meanings of norms governing the spaces we commonly inhabit. I argue that norms regulating public spaces such as streets, parks, plazas, and beaches arise within the process of conceiving tourist representations of space that benefit hegemonic groups in society. My argument is empirically grounded on evidence from a case study on public space regulation in Acapulco, Mexico. By means of a semiotic analysis of tourist materials such as maps and postcards, I show that images related to tourism represent urban space in a way that includes some elements and excludes others. By doing so, they portray a very specific image of the city and its public spaces. Because representations of space are performed upon the entire society, the imagery reproduced by tourist materials is part of the expectations that surround social actors’ actions. This is one of the mechanisms through which the tourism industry influences the regulation of public spaces.     

‘You May Kiss the Bride,But You May Not Open Your Mouth When You Do So’: Policies Concerning Sex,Marriage and Relationships in English Forensic Psychiatric Facilities

In 1996, the Royal College of Psychiatrists recommended that all psychiatric facilities in the UK develop policies concerning sexuality and sexual expression for persons contained in those facilities. This paper analyses the prevalence and content of such policies in English forensic psychiatric facilities. While the College recommends an individualised approach to sexual and emotional relationships, most hospitals in fact either prohibit or actively discourage such expression as a matter of policy. The paper considers the advantages and disadvantages of that approach. The paper also considers the legal issues surrounding these policies, and in particular the legal authority for governing the sexual and emotional expression of hospital residents and the relevant human rights implications.     

High level Antarctic EIA under the Madrid Protocol: state practice and the effectiveness of the Comprehensive Environmental Evaluation process

The 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), the latest instrument of the Antarctic Treaty system (ATS), establishes environmental standards to manage 10% of the planet. Under the Madrid Protocol, all activities subject to advance notice reporting obligations under the 1959 Antarctic Treaty are required to undergo prior Environmental Impact Assessment (EIA). The highest level EIA—termed a Comprehensive Environmental Evaluation (CEE)—requires international scrutiny. This is the only form of EIA where such scrutiny occurs and the only context under the Madrid Protocol or any other part of the ATS where the proposed actions of State Parties, or operators subject to their jurisdiction, are subject to formal international review. Whilst this review does not provide a veto, it has been viewed as an important development in the Antarctic multilateral regime. To date, there have been 19 CEEs. This article reviews the Antarctic CEE process and evaluates its application in practice against the environmental obligations established in the Protocol. Whilst most CEEs are substantial documents and processes, which have raised the standard of environmental care in the area, there are significant generic limitations. Not one CEE appears to have led to substantial modification of the activity as first elaborated by the proponent, let alone a decision not to proceed with the activity, despite this being a mandatory consideration. There are indications that the imperatives in the CEE process are often administrative and diplomatic rather than environmental and that notwithstanding the international scrutiny of draft CEEs, state action may not be significantly changed. Suggestions are made on improvements to the CEE process. The Madrid Protocol is a framework convention, designed so that its technical annexes, including that addressing EIA, may be periodically updated. Twelve years after its entry into force, and almost 20 years after its adoption, such updating may now be useful.     

Common Wealth

After reviewing developments in human rights law and international law – in particular the domestication of international human rights law and the rise of the democratic norm in international law – the importance of these developments for the Commonwealth and for its member states is highlighted and linked to many of the programmes and policies that the Commonwealth Secretariat has recently launched. This paper discusses these developments and others in order to stress the wealth of potential advantages for Commonwealth member states and their citizens that flow from a common commitment under the rule of law to human rights and democracy. The authors endeavour to show that such wealth is more than mere economic benefit – as important as that undoubtedly is – and that citizens stand to reap a moral system of government, one which expands the opportunities for popular participation in political processes and puts an end to social practices that marginalise some citizens and empower others.     

Protecting Marine Biodiversity in Polar Areas Beyond National Jurisdiction

Relatively little is known about polar marine biodiversity, which faces increasing threats from extractive and non-extractive activities and from the effects of climate change. The international legal regime for the protection of polar marine biodiversity in areas beyond national jurisdiction is currently inadequate, particularly in the Arctic. An important and useful outcome of this International Polar Year would be an international agreement for conservation and sustainable long-term management of marine biodiversity in the central Arctic Ocean areas beyond national jurisdiction. This agreement should incorporate the best elements of the Antarctic Treaty System together with modern conservation and management principles, and it should recognize the legitimate interests of the international community as a whole in the conservation and management of polar marine biodiversity.     

The Legal Regulation of Medical Science

Recent developments in reproductive technology have stimulated widespread public debate and controversy, especially regarding the social, ethical, moral, and legal implications of in vitro fertilization and human embryo experimentation. These issues have received a great deal of public attention in Australia over the past two decades. Some jurisdictions have implemented legislation to regulate and prohibit aspects of medical science. This discussion examines the emergence and career of the Infertility (Medical Procedures) Act 1984 in Australia and its regulation of embryo experimentation. The central argument is that law neither simply reacts to scientific developments nor merely reflects alleged community values, but actively constitutes and defines the boundaries of medical science. This fluidity or flexibility provides medical scientists with opportunities to make claims for the legitimate right to undertake certain experiments free from the interference of nonscientists. The controversy surrounding embryo experimentation highlights the ambiguities in distinguishing the proper sphere of science from ethical and legal jurisdictions.     

From vocational training to education: the development of a no‐frontiers education policy for Europe?

This article focuses on developments towards an EU educational policy. Education was not included as one of the Community competencies in the Treaty of Rome. The first half of the article analyses the way that the European Court of Justice and the Commission of the European Communities between them managed to develop a series of substantial Community programmes out of Article 128 on vocational training. The second half of the article discusses educational developments in the community following the Treaty on European Union and the Treaty of Amsterdam. Whilst the legal competence of the community now includes education, the author's argument is that the inclusion of an educational competence will not result in further developments to mirror those in the years before the Treaty on European Union. If the 1980s were a decade of expansion, the medium‐term future is likely to be one of consolidation.     

Constitutional Right to a Healthy Environment and Human Rights Approaches to Environmental Protection in Nigeria: Gbemre v. Shell Revisited

In recent years, there has been an increasing practice of incorporating the right to a healthy/clean environment into national constitutions. This practice can be found in various parts of the world. Importantly, the judiciary in many countries has not only enforced such a right but has increasingly tended to interpret other constitutionally guaranteed human rights, especially the right to life, to include the right to a healthy/clean environment. In Nigeria, there are various environmental concerns which raise the question of environmental protection. This article seeks to consider recent developments in Nigeria in relation to the constitutional right to a healthy/clean environment – more specifically, the adoption of the human rights approaches to environmental protection by a Nigerian Federal High Court judge in deciding a case of alleged environmental damage.     

Conditionality and Enlargement in Light of EU Constitutional Developments

Abstract: Conditionality has deeply affected European integration, particularly in what concerns EU human rights external policy on the one hand, and the enlargement process on the other hand. This paper affords a picture of the problems which conditionality has raised, not only on legal grounds, but also for the shaping and the understanding of the European identity. Moreover, the paper investigates how recent EU developments, such as the further stages of the enlargement process and the ‘Treaty establishing a European Constitution’, might change the course of, and might be affected by, conditionality.     

Security,privacy and freedom and the EU legal and policy framework for biometrics

The adoption of the Treaty of Lisbon and the granting to the Charter of Fundamental Rights of the same legal force as the Treaty has lent a new impulse to the consideration of fundamental human rights by the European Union (EU). The question remains, however, as to how this legal discourse, centred upon human rights, is actually shaping the EU regulatory framework in specific policy domains. The aim of this paper is to critically appraise the ways that the fundamental rights of security, privacy and freedom guaranteed by the Charter are being construed in the context of EU law and policy on biometrics, an ethically and morally sensitive security technology whose development and use are being actively promoted by the EU. We conclude that the interpretation of the pertinent rights, as well as their balancing, owes a great deal to the goals of EU policies for research and development, and under the auspices of Freedom, Security and Justice, shaped largely by political and economic considerations. These considerations then tend to prevail over ethically or morally-based legal claims.     

国际旅游岛建设键避条例立法研究

目前,建设海南国际旅游岛已上升为国家发展战略.建设国际旅游岛是一项长期的、系统的工程,制定<国际旅游岛建设促进条例>是建设国际旅游岛的当务之急.通过制定该条例,可以明确和界定国际旅游岛的指导思想和发展战略,确定国际旅游岛建设的基本原则和制度,建立国际旅游岛发展建设的激励机制和措施,以全面促进旅游岛的国际化发展方向.     

Is it Time to Cut the Gordian Knot of Polar Sovereignty?

There has been recent discussion on the abandonment of sovereignty in the Arctic and territorial and marine claims in Antarctica in the interests of redefining these regions into global commons with joint management. Global commons refers to a region, or group of valued resources, protected from exploitation in the interests of the global population and future generations. While it may be reasonable to examine the possibility of shifting sovereignty in these regions and locking access to any of the resources, an academic examination must not focus on sovereignty in isolation from existing management regimes. Sovereignty is not displaced easily, and nor are sovereign rights; however there is a large capacity for negotiation, consent and agreement towards how resources and areas may be used and enjoyed while maintaining an indifference to existing or exerted territorial and/or marine claims. Sovereignty and sovereign rights can also be preserved, but their utility minimized in the presence of alternative arrangements, as exemplified in the Antarctic Treaty. In the absence of such arrangements, the self-interest of States is manifest. A false sense of probability is fostered by any examination that only considers sovereignty and disregards State practice or current management initiatives. This article demonstrates that the current governance arrangements are legitimate in a dynamic world, regardless of sovereignty, and identifies the lengths to which the stakeholders go to preserve both their national interest and that of the global community in de facto global commons areas. It concludes by offering a view that cutting the Gordian knot of polar sovereignty is both risky and premature in the absence of suitable alternatives.     

The Scope of Criminal Law and Criminal Sanctions: An Economic View and Policy Implications

This paper considers why some harm-generating activities are controlled by criminal law and criminal sanctions while others are subject to some other mechanism such as civil law, administrative law, regulation or the tax system. It looks at the question from the perspective of the law and economics approach. We seek to identify the comparative benefits of using the criminal law relative to other enforcement mechanisms and – more broadly – why certain specific behaviours are criminalized. The paper argues that an economic approach emphasizing the relative merits of alternative legal instruments for bringing about harm reduction can provide an explanation for a number of recent legal developments. It argues also that the willingness of legislators to combine the use of sanctions traditionally used in one area of the law with sanctions from other areas is more readily explicable in economic terms than in other terms.     

Book Reviews

The past decade has seen many developments in anti‐discrimination law in Great Britain, from the implementation of the Disability Discrimination Act 1995 and the Treaty of Amsterdam 1997, to the EU framework directive for equal treatment in employment introducing three new protected grounds between 2003 and 2006 (and the subsequent extension beyond employment, in national law, of two of those grounds). All of these, and myriad implementing regulations, build on the national foundations set by the Sex Discrimination Act 1975 and the Race Relations Act 1976. With formal equality remaining the dominant model, this article looks at the scope for positive measures within British anti‐discrimination law.     

The bankruptcy of the Allegheny Health System and its consequences

In the midst of the healthcare consolidation of the past decade, many have overlooked the inevitable: some of the consolidated systems are bound to fail. The following Commentary gives the reader a close look at the rapid decline of one such system, the Allegheny Health System, and the impact of that failure, the "rescue" of the System's facilities, and the System's ongoing bankruptcy upon delivery of healthcare in the Philadelphia area.     

Directed embryo donation: free choice or discrimination?

The issue of whether to allow or prohibit the directed anonymous donation of human embryos for reproductive use has been publicly contentious. The claims that directed donation are a donor's autonomous right contrast with claims that the practice is discriminatory. Recent legislation and legal recommendation on the issue has been inconsistent or contradictory. This article specifically addresses the question as to whether the directed donation of embryos is the exercise of free choice or an act of discrimination. This question is considered from both ethical and legal viewpoints.