Ellen Hey

The Climate Change Regime: An Enviro-Economic Problem and International Administrative Law in the Making

The climate change problem, or global warming, has gained a prominent place on the international political agenda, since the mid-1980s, when it first attracted political attention. The problem was initially perceived mainly as an environmental problem that could be resolved by technological solutions, its current perception, this essay argues, is best characterized as that of an enviro-economic problem. A perception that is exemplified by the ongoing negotiations for the development of economic mechanisms to tackle the problem. The climate change arena is a complex one, involving dichotomies between developed and developing countries, between fossil fuel producing and importing countries and between small island developing states and other states. This essay outlines the interests that play a role in the climate change negotiations and discusses the international climate change regime as contained in the United Nations Framework Convention on Climate Change and its Kyoto Protocol. It concludes that the climate change negotiations are complicated by the fact that the negotiators, in addition to developing new substantive rules for a complex problem, are involved in developing new systemic rules for the international legal system. These new systemic rules have more in common with rules of national systems of public or administrative law than with traditional rules of international law, which have many similarities with national systems of contract law.

The International Regime for the Protection of the North Sea: From Functional Approaches to a More Integrated Approach

The international regime for the North Sea functions within a complex network of multilateral and regional treaties and institutions, without the existence of a treaty that focuses on the overall protection of the North Sea ecosystem. Nevertheless, a North Sea regime can be identified. This essay shows that that regime has moved from more functional approaches to a more integrated approach. It describes the legal and institutional framework in which the North Sea regime is situated, discusses relevant geographical and geopolitical factors and analyses how the process of change emerged and developed. It concludes that the transition process is about attaining perceptual changes and that in that process law, and rules and regulations, must be regarded as both substantive content, in the sense of standard or rule, and as process, in the sense of procedures for changing or testing the standards and rules.

A healthy north sea ecosystem and a healthy north sea fishery: Two sides of the same regulation?

Abstract Fishing activities are not generally regulated in order to protect and preserve the marine ecosystem, but rather to conserve stocks for future exploitation. This may have to change, as evidence shows that fishing activities are having serious negative effects on the marine ecosystem. The subject is on the agenda of the Ministerial Conferences for the Protection of the North Sea and will be considered at a ministerial working group in 1993. The article focuses on the regime available for regulating fishing activities so as to ensure the protection and preservation of the marine ecosystem. The author concludes that, although the obligation to ensure the protection of the environment also applies to fishing activities, international instruments are not tailored to deal with this issue. Within the European Community the required integration of environmental considerations into other policies, however, provides an opportunity for tackling the matter. The author suggests that a precautionary approach b...

The persistence of a concept: Maximum sustainable yield

AbstractThis essay explores the persistence of the concept of maximum sustainable yield (MSY) in global multilateral fishing law. It argues that MSY has contributed to the unsustainable governance of fishing activities by focusing on open access and catch-based management, instead of effort-based management. In response to the dire state of world fish stocks, it has been proposed to cut subsidies to the sector, restrict trade in endangered fish species, install marine protected areas and mainstream the Food and Agriculture Organization’s (FAO) ecosystem approach to fisheries (EAF). This essay proposes that the FAO’s EAF, which links in to social-ecological resilience thinking, suggests a new philosophy for fisheries management that offers a basis for introducing the aforementioned measures.

International water law placed in a contemporary environmental context: the Gabcíkovo-Nagymaros case

Abstract The Judgement of the international Court of Justice in the Gacikovo-Nagymaros Case provides the contemporary context in which the Watercourses Convention and other international treaties related to the use of natural resources are to be interpreted. The Judgement does so by introducing the notion of ‘evolving provisions of environmental law.’ This notion enables the integration of contemporary principles and concepts of environmental law, such as the precautionary principle, the interests of future generations and prior and continuous environmental impact assessment, into older or outdated treaties.

The Inter-Play Between Multilateral Environmental and Fisheries Law: A Struggle to Sustainably Regulate an Economic Activity – Including a Case Study on the North Sea

This essay focuses on the impact of multilateral environmental policy and law on multilateral fisheries policy and law, however, en route it will also point to the limited impact that developments in these fields of law have had on multilateral law concerned with the economics of the fishing industry. First, by way of an illustrative case study, this essay will explore the inter-play between environmental policy and law and fisheries policy and law in the North Sea, as it is with in this region that the precautionary principle first emerged and that environmental bodies started to address fishing activities. Thereafter, the impact of multilateral environmental policy and law on multilateral fisheries policy and law will be assessed. First, the recognition of fishing activities as impacting on the environment will be discussed. Subsequently, the manner in which the environmental impact of fishing activities has been conceptualized will be analyzed. In these last two parts of the essay the analysis focuses mainly on multilateral fisheries instruments that address high seas fishing activities, including fishing for straddling and highly migratory stocks. Finally, by way of conclusion, the factors that have limited the contribution of multilateral law to the introduction of sustainable fishing activities as well as an alternative approach to fisheries management will be revisited.

THE NETHERLANDS AND A CENTURY OF INTERNATIONAL ENVIRONMENTAL LAW

This article discusses the manner in which the Netherlands has engaged with the development of international environmental law since the beginning of the 20th century. It deals with a number of selected topics by focusing on three themes which have at various times surfaced in during the past 100 years. These three themes are individuals matter, principles and pragmatism and European and international environmental law. The topics discussed are nature conservation, oganotins in anti-fouling paint, the whaling regime, climate change and water (river and oceans) law in Europe. The article concludes that the Netherlands continues to invest in the development of international environmental law and that its position is best characterized as pragmatically pro-environment and in support of sustainable development. The conclusions also point out that one theme runs through the development of international environmental law: a search for the ‘right’ institutions.

Hard Law, Soft Law, Emerging International Environmental Law and the Ocean Disposal Options for Radioactive Waste

Radioactive waste is not at present, at least officially, dumped at sea or disposed of into the seabed. At the regional level, several treaties prohibit such disposal. At the global level, the dumping at sea of high-level radioactive waste and the disposal of all radioactive waste in Antarctica, including the ocean areas south of 60 degrees south latitude, are prohibited by international law. The dumping at sea of low-level radioactive waste and the sub-seabed disposal of all radioactive waste (hereinafter also referred to as the ocean disposal options), at the global level, are subject to legally non-binding and temporary suspensions or moratoria. It is thus that the ocean disposal options remain on the international agenda and that the permissibility of using these options remains an issue of debate.