Gerd Winter

Multilevel governance of global environmental change : perspectives from science, sociology and the law

List of contributors Introduction Gerd Winter Part I. Earth System Analysis: 1. Dimensions and mechanisms of global climate change Peter Lemke 2. Global climate change - what can we learn from the past? Stefan Rahmstorf Part II. Society and Institutions of Global Environmental Change: 3. The social embeddedness of global environmental governance Karl-Werner Brand and Fritz Reusswig 4. Globalising a green civil society Asher Alkoby Part III. Self-Regulation of Industry and the Law: 5. Private authority, global governance and the law Martin Herberg 6. Responsibility of transnational corporations in international environmental law: three perspectives Andre Nollkaemper 7. Transboundary corporate responsibility in environmental matters: fragments and foundations for a future framework Jonas Ebbesson 8. The diffusion of environmental policy innovations Kerstin Tews 9. Process related measures and global environmental governance Christian Tietje 10. The impact of the U.S.A. on regime formation and implementation Thomas Giegerich 11. Transnational bureaucracy networks, a resource of global environmental governance? Michael Warning 12. The EU - a regional model? Ludwig Kraemer 13. Transition and governance: the case of post-Communist states Stephen Stec, Alexios Antypas and Tamara Steger 14. Multilateral environmental agreements and the compliance continuum Jutta Brunnee 15. On clustering international environmental agreements Konrad von Moltke 16. Institutions, knowledge and change: findings from the quantitative study of environmental regimes Helmut Breitmeier 17. Regulatory competition and developing countries and the challenge for compliance - push and pull measures Joyeeta Gupta 18. Policy instrument innovation in the European Union: a realistic model for international environmental governance? Andrew Jordan, Rudiger K. W. Wurzel and Anthony R. Zito 19. Financial instruments and cooperation in implementing international agreements for the global environment Charlotte Streck 20. Global environmental change and the nation state: sovereignty bounded? Peter H. Sand 21. Whose environment? - concepts of commonality in international environmental law Michael Bothe 22. Globalising environmental liability: the interplay of national and international law A. E. Boyle 23. The legal nature of environmental principles in international, EU and exemplary national law Gerd Winter.

Bartering Rationality in Regulation

Legal powers given to administrative agencies are frequently used as bargaining chips in negotiations between government and business. This paper develops a typology that helps to explain the empirical variety of such bartering. Inquiring into the historical development of bartering, the article shows that what is new is not the practice of but the discourse about bartering. The discourse legitimates bartering with legal powers. This, in turn, will reshape practice, affecting the bargaining positions of the parties, the mode of law-making, the role of third parties and the public, and the potential of the law to induce social change.

The structuring of GMO release and evaluation in EU law

Genetically modified organisms (GMOs) and their behavior in the environment are complex and can only be assessed if the different components are distinguished. This article examines, how by EU law the real causation processes from the GMO release to various endpoints are dissected, individually analysed and then again viewed in their entirety. In addition, the articles includes, how the intellectual process of assessment is divided into the steps of tiered generation, shared submission and structured evaluation of relevant knowledge. The framework proposed for such an examination allows to identify strengths and weaknesses of GMO risk assessment in the EU.

The Regulation of Synthetic Biology by EU Law: Current State and Prospects

Assuming that synthetic biology (SynBio) will generate not only new benefits but also new risks to human health and the environment this article explores to what extent SynBio is already adequately supervised by the existing EU regulation of genetically modified organisms (GMOs). While the GMO regime is applicable to many kinds of SynBio activities, others are not covered, such as the complete replacement of the genetic material of a cell, the insertion of transgenes into an organism by other methods than those listed as qualifying as genetic engineering—or not—the construction of a protocell and minimal cell, the placing on the market of bioparts, and xenobiochemistry. The article then asks if the risk assessment methodology applicable to GMOs is suited for products from SynBio. This question is denied insofar as the familiarity principle which governs traditional GMO risk assessment is concerned. New and genuine methodology must be developed to identify hazards and evaluate risks. While the thrust of the article is on ex ante regulation, or administrative oversight, it also discusses ex post regulation, or civil liability for damage, concluding that liability schemes must also be adapted to the new characteristics of SynBio. In sum, it is time for regulators to take a closer look at SynBio.

European environmental law : a comparative perspective

Part 1 General questions: the scope of environmental law, Richard Macrory environmental constitutional law, Karl-Heinz Ladeur. Part 2 The administrative model: substantive criteria of environmental protection, Gerd Winter instruments of direct behavioural regulation, Michael Kloepfer and Gerd Winder environmental impact assessment, Claude Lambrechts freedom of environmental information, Gerd Winter public participation in environmental decisions, Calude Lambrechts standard-setting in environmental law, Gerd Winter judicial review of administrative action, Albert Mumma implementation of administrative environmental law - a case study of Italy, Antonella Capria how to organize environmental administration, Peter Knoepfel. Part 3 Instrumenting self-control: from regulatory control to network management, Pieter Glasbergen financial instruments in environmental protection, Gyula Bandi environmental liability, Malcolm Grant self-regulation by industry, Eckard Rehbinder. Part 4 The European Community framework: the development of EC environmental law, Jan Jans objectives and principles of EC environmental law, Jan Jans the elaboration of EC environmental legislation, Ludwig Kraemer the competences for EC environmental law, Jan Jans transboundary transfer of dangerous goods, Gretta Goldenman. Part 5 Central and Eastern Europe in search of a fitting model: drafting new envirnomental law in Poland - radical change or merely reform?, Jerzy Jendroska environmental law reform in Central and Eastern Europe - the case of Hungary, Gyula Bandi adaptation to EC environmental rules - options for Central and Eastern European states, Ludwig Kraemer.

In Search for a Legal Framework for Synthetic Biology

The law answers to new technologies in three different ways: the technologies are enabled and restricted by regulation, they are promoted by (among others) granting intellectual property rights, and they may be required to share benefits. All of these functions come into play in synthetic biology. They are discussed in the present contribution. Concerning the enabling and regulating function the study suggests that the existing regulatory framework for genetically modified organisms (GMOS) cannot be relied on as an adequate means of controlling risks from synthetic biology. Various strands of synthetic biology are either not captured by the present regulation, or not appropriately treated by the present risk assessment methodology. This study suggests that based on a screening and categorisation of the risks from synthetic biology new regulation should be introduced covering both genetic engineering and synthetic biology. Concerning the promotion of the technology through intellectual property law the article finds that patent law has primarily served interests of industry to privatise nature. This has hindered the pluralistic evolution of research and development (R&D). Besides advocating common pool solutions, the article explains how the preconditions of patenting can be interpreted in a way that sparks free R&D in synthetic biology. Concerning benefit sharing the new legal regime on access and benefit sharing is applicable also to synthetic biology. The increasing artificiality of its products however poses the question how the contribution of the original genetic resource can be tracked and valued. It is suggested that rather than relying on the bilateral exchange ‘genetic resource for remuneration’ joint R&D projects between provider and user should be strived for.

Literaturbericht zum Thema

Mit dem Abklingen der Sozialisierungsdebatte Anfang der funfziger Jahre ruckte die Alternative soziale Marktwirtschaft — demokratischer Sozialismus als Leitidee vor (Hartwich 1968). Kooperation und Verflechtung von Staat und Wirtschaft, die fur die Sozialisierungsperspektive ein wenn auch normatives, nicht analytisches, so doch gelaufiges Thema waren, verloren an Interesse.

European Union and German law on co-existence: Individualisation of a systemic problem

BackgroundCo-existence of the cultivation of genetically modified and non-genetically modified crops is commonly regarded as a suitable way out of the clash of perceptions of environmental or health risks of genetically modified organisms. It allows setting aside a clear risk-based decision for or against genetically modified organisms, because all types of agriculture shall be given the possibility to exist side by side.Still, co-existence entails conflicts which the law strives to solve. European Union law is reticent as to binding co-existence measures and has left this task to the member states. Taking Germany as a case, the established rules have not been effective because they shift conflict resolution to the local and individual level. A systemic approach suggests the use of landscape planning as a means of clustering different kinds of agriculture.MethodsThe pertinent European Union and German law is summarised and interpreted. Its effects are analysed and explained. From this reform, suggestions are derived.ResultsAccording to the European Union, conception measures aiming at reducing health and environmental risks of genetically modified organisms must be separated from measures aiming at ensuring the economic co-existence of different kinds of agriculture. In contrast, German law on gene technology does not precisely separate risk mitigation measures from co-existence measures. The measures all aim at solving the conflicts between the individual landowners and thus fail to recognise the systemic character of the conflict between agricultures. The systemic conflict can better be solved by non-binding landscape planning or a legally binding agrarian utilisation plan, yet to be developed. Legislation addressing the conflict of agriculture must respect its constitutional dimension, i.e. the clash of basic rights to property and entrepreneurial freedom of conventional, organic and genetically modified organism farmers, industry, commerce and consumers. Binding and non-binding planning measures are compatible with constitutional guarantees as well as with European Union lawConclusionsCo-existence and freedom of choice between the different agricultures is not effectively achieved by the existing individual solutions. Binding agricultural planning should therefore be introduced establishing e.g. genetically modified organism-free zones. Such measures are compatible with constitutional guarantees and with EU law.

Ecological risk assessment and the regulation of chemicals: III. Balancing risks and benefits

Abstract Looking from both a scientific and legal background the authors suggest a model of how to decide about chemical substances in pre- or post-market regulation. The model reacts to the fact that whereas chemical substances abound, time and resources are scarce for gaining reliable information about the environmental impact. Often, uncertainties are inherent in the prediction of ecological effects. Risk analysis and assessment is broken down into an initial and a full-scale run. The initial run focusses on the intrinsic properties of the chemical substance and its metabolites. By application of exclusion criteria it may already lead to a positive or negative decision. Balancing risk against benefit, and comparing the benefit-risk ratios of the primary and of an alternative substance constitute further evaluative steps which again allow regulatory decisions. Substances which pass these steps and therefore are to be considered not clearly dangerous and comparatively beneficial are exposed to full-scale analysis. The evaluative steps are reiterated with regard to the outcome of this analysis.

International Principles of Marine Environmental Protection

This contribution starts with clarifying the role principles play as a form into which propositions of environmental protection are brought. It is submitted that the role principles play in political-legal practice, in legal reasoning and in positivist texts should be distinguished. On this basis various contents of international principles of marine environmental protection are discussed, including cooperation, “neminem laedere”, precaution, environmental impact assessment, marine scientific research, transparency/participation, sustainability, and common heritage of mankind.