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Comment on the Opinion by Advocate General Saugmandsgaard Øe in the Tapiola Case (C-674/17)

Jan Darpö

The “wolf issue” is hot all over Europe, not least in the Nordic countries. Due to pressure from farmers’ and hunters’ organisations, license hunts are performed on a large scale basis in Norway, Sweden and Finland. As the wolf is strictly protected under the Habitats Directive, hunts must have a legal basis in a derogation decision according to Article 16(1). Many of the hunting decisions issued by the authorities under this provision have been challenged in the national courts by the engo community, but so far with little success. However, in late 2017, the Finnish organisation Tapiola brought a case all the way to the Supreme Administrative Court, which requested a preliminary ruling by the cjeu on whether such a license hunt is in line with the Directive. The Advocate General’s opinion in this case (C-674/17) came in May. This article is a comment to that opinion.

Stefan Möckel

For decades, German agriculture has been responsible for high nitrogen inputs into the environment. Recent reductions in nitrogen surpluses that were originally caused by fertilization are not sufficient to meet European requirements. In the case of ammonia emissions, there has even been an upward trend despite contradicting national emission targets due to the expansion of animal husbandry. Both developments are not surprising, since German agricultural policy has for years been unable to adopt stricter measures that would reduce nitrogen surpluses and ammonia emissions and modernise existing regulatory concepts in line with European requirements. This paper presents the state of current emissions in section 1. Subsequently, sections 2 to 4 present the regulatory concepts for livestock facilities, agricultural fertilisation as well as the protection of Natura 2000 areas from agricultural intervention and identify their shortcomings in the light of recent rulings by the European Court of Justice. The paper offers a summary assessment that includes the most important areas for improvement.

Louis J. Kotzé

This paper argues that international environmental law (iel) is not sufficiently ambitious to confront the Anthropocene’s socio-ecological crisis. The critique specifically focuses on iel’s lack of ambitious and “unmentionable” ecological norms such as rights of nature, Earth system integrity, and ecological sustainability that are not yet considered to be part of the corpus of iel, but that arguably should be in light of the prevailing and ever-deepening socio-ecological crisis. Assuming that the recent Global Pact for the Environment initiative and its accompanying United Nations-mandated report that assesses possible gaps in iel are indicative of the type of reforms we might expect of iel now and in future, the paper determines if and the extent to which the Global Pact initiative embraces ambitious norms and addresses iel’s “unmentionable” normative gaps. A secondary, but related, objective of the paper is to briefly respond to the recent view that any radical critique of the Global Pact initiative is either unfounded, unwarranted or undesirable.

Anna Christiernsson

As with many biodiversity laws, the Habitats Directive allows for exemptions. While it can be argued that flexibility is necessary for handling dynamic ecosystems, the associated lack of legal clarity on the room to derogate can risk impairing both the effectiveness and the uniform application of EU-law. This study aims at clarifying the conditions to derogate from the strict protection of species under Article 16(1)(e), a provision which has been interpreted to provide a legal basis for hunting species with a favourable conservation status in several Member States. One such controversial case is the hunting of brown bears in Sweden. The Swedish brown bear management will thus be used as an illustrative example to discuss Member States’ discretion to derogate under Article 16(1)(e).

Wolfgang Köck

In Germany, the wolf population develops in a very dynamic manner. As a result, politics and society increasingly worry about human safety and whether the return of the wolf can be kept compatible with pasture grazing. Plans by the federal states (Länder) for wolf management serve both to prepare society for the return of wolves and to deal with likely emerging conflicts. In exceptional cases, conflict management may include the ‘removal’ of wolves, i.e. the killing of individual ‘problem-wolves’. This paper analyses the legal prerequisites for the removal of wolves; it also addresses the conditions that must be met for wolf management to be placed under a new legal framework – beyond the exemption regime under species protection law. In this context, the ‘favourable conservation status’ of wolves plays a key role.

Shawkat Alam and Sheikh Noor Mohammad

Abstract

The ecosystem approach emerged in the international environmental realm to promote equity and justice for both people and nature. It provides a set of mechanisms, including equitable benefit sharing; conservation and sustainable use; adaptive management; and participatory practices. This article explores how the ecosystem approach that is used in natural resource management shares synergies with notions of environmental justice, including distributional justice, procedural justice and justice-as-recognition. It also explores how the ecosystem approach responds to two additional principles of environmental justice that are specific to environmental disciplines, namely, intergenerational equity and the precautionary principle. The article illustrates the complementarity between the ecosystem approach and environmental justice through practical examples and argues that environmental justice can be promoted by utilizing the ecosystem approach as a vehicle for policy-makers.

Beatriz Garcia, Mandy Meng Fang and Jolene Lin

Abstract

Marine plastics pollution (MPP) is an alarming problem affecting many countries, particularly in the Asia-Pacific region, and generated mostly from land-based sources. Five Asian countries (i.e. China, Indonesia, the Philippines, Vietnam and Sri Lanka) have been identified as the largest sources of MPP globally. This article presents two cases studies focused on the two largest polluters: China and Indonesia. Both countries face similar challenges in dealing with plastic pollution. They have weak legal and institutional frameworks in place to deal with MPP. The two case studies also show that there have been more creative and effective measures taken at the domestic level by local governments and non-state actors, many of which involve partnerships among different stakeholders. This article argues that governance efforts to address MPP require an ‘all hands-on deck’ approach, involving multi-level and multi-actor strategies and targeted regulatory and non-regulatory measures. However, our findings also suggest that most efforts should be directed at the subnational level, from which the problem mainly originates. This article proposes a number of legal and policy recommendations, based on the lessons learned from the case studies, which can be instrumental in reducing the global MPP crisis.

Michael Addaney, Michael Gyan Nyarko and Elsabe Boshoff

Abstract

Scarce environmental and natural resources, such as minerals and water, are traditional origins of armed conflicts in Africa. There are persuasive and wide-ranging claims to the effect that environmental degradation will intensify resource scarcity and consequently contribute to an increase in armed conflict. Existing studies show that most governments in Africa overexploit valuable natural resources such as diamonds, oil and timber to finance war, without regard to environmental protection. Environmental protection during armed conflict has therefore gradually gained significant attention at international, national and regional levels. This article explores how regional laws could fill gaps in the international legal frameworks for the protection of the environment and natural resources in the context of armed conflicts in Africa. It considers the extent to which the enforceable content of regional and international norms apply to environmental damage in times of armed conflict and assesses the main shortcomings of existing normative frameworks to make a case for reform. The article argues that regional law (the African Convention on the Conservation of Nature and Natural Resources) offers strong and direct protection to the natural environment during armed conflict and requires a lower threshold for its application as compared with the Additional Protocol I to the Geneva Conventions. It concludes by providing recommendations on finding durable solutions to protection of the environment during resource-fuelled armed conflict in Africa.