The Vuosaari Harbour Case: Implementation of the Habitats and Birds Directives in the Vuosaari Harbour Project

An extensive new port is being constructed at Vuosaari, on the outskirts of Helsinki. A Natura 2000 site important for wild birds is situated just outside the harbour. As a result, nature conservation and economic interests have come into conflict, which has resulted in long and cumbersome decision-making processes both at the national and the EU level. The case highlights many principles and key provisions in the Habitats and Birds Directives, such as the precautionary principle, the role of assessment and decision making, the delimitation of sites and the cumulative effects of projects. The duty of the Supreme Administrative Court to request an opinion from the European Court of Justice is also one of the key issues. This article examines the implementation of the Habitats and Birds Directives and the interpretation of some key provisions in light of EU case law.     

International Whale Conservation in a Changing Climate: The Ecosystem Approach,Marine Protected Areas,and the International Whaling Commission

Abstract

Whale populations are exposed to a suite of contemporary threats, including by-catch, ship strikes, habitat degradation, and climate change. Of these threats, climate change presents the most challenging management dilemma because it pressures whale populations directly (e.g., by altering habitat suitability) and indirectly (e.g., by increasing disease transmission and exposure to toxicants, by affecting prey abundance, and by exacerbating other threats). There is also an emerging scientific understanding of how healthy whale populations constitute an important biological component of the climate system and contribute to climate change mitigation. The International Whaling Commission (“IWC”), which is the primary international organization dedicated to whale conservation and management, has investigated and studied climate change but has failed to develop a commensurate management response. Conversely, parallel developments in international wildlife conservation and management evince support for an integrated and holistic ecosystem approach (“EA”) and urge the immediate development of climate-adaptive measures. The EA has been operationalized in prominent legal instruments and through various management techniques, including marine protected areas (“MPAs”). In view of observed and predicted effects of climate change on whales, this article proposes a new approach to designating and protecting whale sanctuaries at the IWC that better aligns with a contemporary understanding of the EA and MPAs, and that can advance the IWC’s institutional transition towards climate-informed modernized management. This proposed innovation is tested for its legal permissibility and political feasibility, and the analysis concludes that improving the IWC’s regulatory functionality remains a crucial conservation objective.     

Delaney and the Motor Vehicle Insurance Directives: lessons for the teaching of EU law

A recent series of cases relating to the EU Motor Vehicle Insurance Directives and their application in the UK makes for interesting reading. It is the UK’s negligent transposition, and a lack of knowledge and awareness by lawyers and judges in the cases of the interaction between domestic and EU law, which compounds the negative effects. The issues raised in Delaney v Pickett [2011] and Delaney v Secretary of State [2014] do not just generate concern as to the implications they have for the application of EU law principles, but have resonance with the way in which EU law is taught in many universities. In this article we suggest that reconsidering the method and purpose of EU teaching may better serve the EU-lawyers needed for the future.     

自然保护地立法的体系化:问题识别、逻辑建构和实现路径

建立中国特色国家公园体制以及以国家公园为主体的自然保护地体系是中共十八届三中全会提出的重点改革任务,而推进自然保护地立法体系化是2019年《关于建立以国家公园为主体的自然保护地体系的指导意见》中的明确要求。自然保护地作为国家履行环境保护义务而运用区划工具进行管理的一种公物,其体系化建设是实现改革目标的要求。立法的体系化不仅是达到保护目标的现实需求,而且也是法律体系化在自然保护地领域的有效延伸。自然保护地立法的体系化包括形式意义的体系化(即结构的体系化)和实质意义的体系化(即功能的体系化)。结构的体系化是指通过立改废释等方式,构建全面完整的自然保护地立法框架;功能的体系化是指将各项法律功能分配给相应的法律法规,该功能的实现需要在自然保护地内部法律法规之间进行合理配置,也需要与外部相关法律之间形成有效衔接。唯此,自然保护地立法的体系化才能推动以国家公园为主体的自然保护地体系和中国特色国家公园体制的建成。     

Politics and Rights: The Future of the EU from a European Perspective*

Abstract. Beyond Community political minimalism, citizenship, rights and States are today associated with new constitutional ambitions. In this connection this paper draws attention to the “unsaturated” character of national institutions, especially parliamentary institutions, and argues for a re‐elaboration of the classical European conceptions of rights in an institutional rather than a purely individualistic perspective.     

Gender Quotas in Politics: The Greek System in the Light of EU Law

Positive action is currently gaining momentum in the European anti-discrimination discourse and policy-making as a necessary and effective tool to achieve the goal of full and effective equality in employment. Gender quotas in politics, however, are thought to remain outside the normative scope of Community law, the dominant view being that candidature for elected public office does not constitute employment in the sense of the relevant provisions. This article seeks to examine the Greek quota system for women in politics in its dialectical relationship to the general equality discourse and with reference to the current normative framework in Europe. The aims are threefold: to assess the legality of positive action in favour of women in politics from the point of view of EU law, to evaluate the effectiveness of the Greek system in achieving its gender equality goals, and to identify the problems that quotas in politics may pose with regard to the principle of democratic representation. It will, thus, be argued that positive measures in politics, though generally compatible with the fundamental principles of justice and representative democracy, may nevertheless be inadequate—at least in their current form—to provide effective solutions to the unequal distribution of social and political power.     

我国海洋保护区制度的实施与完善:以海洋生物多样性保护为中心

我国海洋保护区制度在地域规划、功能分类以及治理模式等方面存在着较大缺陷,应予进一步完善。在地域上,应推进建设南海海洋保护区,并在我国专属经济区内构建更多的海洋保护区。在功能上,应借鉴美国NOAA的分类标准,区分生物与非生物资源并实施不同的保护水准和保护措施。在治理模式上,应弱化目前的政府管制型治理模式,强化自愿性尤其是共管型治理模式,推进政府与社会公众的管理分享。     

The Priority of Politics and Procedure over Perfectionism in Penal Law, or, Blackmail in Perspective

Criminal law theory concerns itself with the justification of punishment. Conflicting moral theories of punishment will be held in liberal democracies. The positive law therefore neither will nor should reflect exclusively a single moral theory of punishment. Like the institutions for making law, the institutions for enforcing it will cause punishments imposed to deviate from what pure moral theory might prescribe. These claims are illustrated by the debate over blackmail prohibition. The best rationale for prohibition is not the moral argument that blackmailers culpably cause harm, but the political argument that blackmailers threaten the state’s claimed monopoly on punishing crime.     

The First Decision of the ICC Pre-Trial Chamber: International Criminal Procedure Under Construction

By its decision of 17 February 2005 to convene a status conferenceon the situation in Democratic Republic of Congo, the ICC Pre-TrialChamber I broadened its role by referring to and interpretingthe general provision contained in Article 57(3)(c) of the ICCStatute. It resorted to the status conference in order to exercisegeneral control over the work of the Prosecutor that is notrelated to a specific occasion, with a view to obtaining informationabout the investigations seven months after their initiation.During this time, the Prosecutor had not let the Chamber knowanything about his progress and results. Arguably, the mainreason behind the Chamber's decision was its intention to bothspeed up the investigations and to take care of the rights ofthe ‘prospective suspects’ — a special aspectof the ‘interest of justice’ — to whom thedelay could, obviously, be prejudicial. Thus, the Chamber somewhatshifted the ‘equilibrium’ between legal traditionsreached in Rome, arguably taking on a role more closely resemblingan investigating judge than provided for in the Statute andICC Rules of Procedure and Evidence.     

环境行政执法与刑事司法相衔接的程序失灵研究

环境行政执法与刑事司法作为生态环境保护的两种重要手段,其协同运作是我国环境保护和生态文明建设的根本法治保障,而破解两者之间相衔接的程序失灵问题则是目前亟待解决的重要抓手。在环保领域两法衔接中,存在着严重的隐蔽性程序失灵现象:程序性规则因成本问题被选择性规避;环保机构遵循衔接程序存在扩大责任风险的悖论;行政权对司法权的消融与僭越;衔接程序遭遇无力的激励与约束等因素。程序失灵的矫治应从明确移送职责、移送标准、提前介入程序等方面规范涉嫌环境犯罪案件的移送程序;采取直接调取转化、重新收集转化、授权委托转化等不同标准规范行政证据与刑事证据的收集与转化程序;从加快案件信息共享平台建设、完善两法衔接的程序激励机制、发挥检察监督的程序保障机制,从而促进环境司法的健康有序发展。     

The Commission for Environmental Cooperation and North American Migratory Bird Conservation: The Potential of the NAAEC Citizen Submission Procedure

This article examines the citizen submission process laid out in Articles 14--15 of the North American Agreement on Environmental Cooperation (NAAEC), the 1993 environmental NAFTA “side agreement.” These articles set out a process by which nongovernmental organizations (NGOs) or individuals may file a submission alleging that one of the Parties to the agreement “is failing to effectively enforce its environmental law.” The paper traces developments set in motion by two submissions alleging failure to enforce migratory bird legislation. The first targets the United States, the second, Canada. Developments in these and other Article 14--15 cases have enfeebled an instrument that, from the outset, many regarded as having quite limited potential. These cases indicate, nonetheless, that the procedure still has some limited usefulness as a way of highlighting implementation failures. NGOs that do choose to invest in pursuing a citizen submission process would be advised to combine these efforts with other approaches to mobilizing public pressure.