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Advocating Social Change through International Law

Exploring the Choice between Hard and Soft International Law

Edited by Daniel Bradlow and David Hunter

Law in West German Democracy

Seventy Years of History as Seen Through German Courts

Series:

Hugh Ridley

Law in West German Democracy relates the history of the Federal Republic of Germany as seen through a series of significant trials conducted between 1947 and 2017, explaining how these trials came to take place, the legal issues which they raised, and their importance to the development of democracy in a country slowly emerging from a murderous and criminal régime. It thus illustrates the central issues of the new republic. If, as a Minister for Justice once remarked, crime can be seen as ‘the reverse image of any political system, the shadow cast by the social and economic structures of the day’, it is natural to use court cases to illuminate the eventful history of the Federal Republic’s first seventy years.

Incorporating Indigenous Rights in the International Regime on Biodiversity Protection

Access, Benefit-sharing and Conservation in Indigenous Lands

Series:

Federica Cittadino

Edited by Lorenzo Squintani

Juliane Kokott and Christoph Sobotta

The enforcement of EU environmental law is of particular relevance because EU law provides most of the framework of environmental law in the Member States, including the UK. Supervision by the EU Commission ensures a certain general standard of compliance, especially as regards transposition of directives and conformity of transposing legislation. The practice of domestic courts is an essential complement to Commission action. In this respect the Luxembourg jurisprudence has in particular strengthened the judicial powers of UK courts and provided some protection against excessive costs of judicial proceedings. After brexit much of this contribution could continue to be relevant, in particular if the agreement that was negotiated with the EU should be ratified.

Charlotte Streck, Moritz von Unger and Nicole Krämer

The adoption of the “Paris rulebook” at Katowice in late 2018 marks the most significant milestone in international climate policy making since the adoption of the Paris Agreement in 2015. Through a package of decisions, Parties to the Paris Agreement fulfilled almost all of the Paris mandate and moved towards the full implementation of the treaty. With the exception of the discussion on the future of carbon markets, negotiators managed to find common ground across negotiation items ranging from mitigation action to ensuring transparency and follow-up, including through “global stocktakes”, climate finance and technology transfer. Most obligations will apply to all countries, replacing the “bifurcation” of the Kyoto Protocol with a common set of rules for all Parties. Developing countries can make the case for additional time and assistance to comply with the full set of requirements. Several matters are left for future sessions – concerning, in particular, the harmonization of the timeframes of mitigation goals, markets and finance mobilization– and structural challenges – not least concerning the integration of non-state actors – remain. However, in building on accountability, trust, and compliance through facilitation, the new Paris rules may ultimately prove decidedly more robust and sustainable than those of the Kyoto Protocol.

Annalisa Savaresi and Lucia Perugini

Under the recently adopted 2030 EU climate change policy framework, land use, land use change and forestry (lulucf) will for the first time contribute to the EU’s economy wide emission reduction target. This article looks at the history of the lulucf Regulation, analysing its contents in light of the history of international and regional efforts to regulate emissions and removals in this specific sector. It highlights the challenges associated with regulating this specific sector and reviews the regulation, assessing how well it has addressed these challenges.

Bernhard W. Wegener

The Gerechtshof in The Hague has condemned the Netherlands to take measures to ensure a reduction of at least 25% of Dutch greenhouse gas emissions by the end of 2020. The court thus confirms the first-instance Urgenda decision, which had attracted much attention worldwide and which serves as a model for a whole series of other climate change litigations, some of which have since failed, some are still pending or planned. Even bearing in mind the urgency of the climate protection goal pursued by these lawsuits, the idea of a world rescue through court decisions is ultimately misleading. It overestimates the power of the judicial branch and risks being lost in mere symbolism. Worse still, it shifts responsibilities and creates expectations that tend to further de-legitimize the constitutional democratic systems of the world and their concept of a separation of powers. Even from a solely environmental point of view, this constitutes a high risk, because there are no better alternatives of responsible government. Keeping this risk in mind, the fact that the specific “Urgenda”-decision is legally not convincing seems an almost minor aspect.