Malgosia Fitzmaurice

Contemporary issues in international environmental law

Contents: Introduction 1. Precautionary Principle 2. Sustainable Development 3. Intergenerational Equity Revisited 4. The European Convention on Human Rights and Fundamental Freedoms and the Human Right to a Clean Environment: The English Perspective

The Human Right to a Clean Environment–Phantom or Reality? The European Court of Human Rights and English Courts Perspective on Balancing Rights in Environmental Cases

Whilst many claim there is a human right to a clean environment, the jurisprudence of the European Court of Human Rights is examined to show how that court has balanced rights and interests in deciding relevant cases on this issue. Recent jurisprudential and academic debates on balancing are examined in this context before an analysis of some English decisions in this area to show that the existence of a human right to a clean environment may indeed be a phantom.

Research Handbook on International Environmental Law

This wide-ranging and comprehensive Handbook examines recent developments in international environmental law (IEL) and the crossover effects of this expansion on other areas of international law, such as trade law and the law of the sea. The expert contributors offer analyses of foundational issues in IEL, such as responsibility for environmental damage, sustainable development and the precautionary principle, alongside studies in topical subject areas including marine protection and the law of international watercourses. This Research Handbook offers an in-depth analysis of IEL, both as a field of law in its own right, and as part of the wider system of international law. It gives a comprehensive view of IEL in all its forms and complexity. With thorough examination of specific environmental regimes and compliance mechanisms, this handbook will be an indispensable resource for legal scholars, students and practitioners alike.

Third Parties and the Law of Treaties

The author analyzes the relationship between third parties and treaties as defined by a general formula pacta tertiis nec nocent nec prosunt . This principle has been recognised in states’ practice as fundamental, and its existence has never been questioned. For states non-parties to the treaty, the treaty is res inter alios acta . It has been reflected in numerous cases before the World Court. For example, in the German Interests in Polish Upper Silesia Case, the PCIJ observed that: “[a] treaty only creates law as between States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States.”

The New Developments Regarding the Saami Peoples of the North

This article explores and critically assesses new developments regarding the Saami peoples of Northern Europe. In particular it will be focused on new legislation promulgated in Norway and the Draft Saami Convention and their right to self-determination. The 2005 Norwegian Finnmark Act grants indigenous peoples of the North far reaching rights regarding rights to land and natural resources and grants the Saami the right to be consulted on matters which impact on their livelihood. On the basis of this Act The Finnmark Act Norwegian Government transferred about 95% (about 46,000 km2) of the area in the Finnmark county in Norway to the inhabitants of Finnmark. This area is managed by the Finnmark Estate agency. The Finnmark Estate is managed by a board of directors with six members. Three of these are appointed by the Sami Parliament of Norway, and three by the Finnmark County Council. Special Commission (a Commission and Tribunal) will be set up to recognize of existing rights of use and ownership in Finnmark area. The purpose of the Act is to implement in Norway the 169 ILO Convention on Indigenous and Tribal Peoples in Independent Countries. The Article deals also with the question of the right to self-determination of the Saami in the light of this Act. However, it must be observed that the Finnmark Act is ethnically neutral i.e. the legal position of an individual is not dependent on him or her being Sami, Norwegian, Kven, or a member of another population group. The 2005 Saami Draft Convention constitutes in the most innovative approach to indigenous peoples beyond the statist paradigm. It treats the Saami peoples in Finland, Norway and Sweden as one peoples and grants them very far reaching rights to land and natural resources.

The Dilemma of Traditional Knowledge: Indigenous Peoples and Traditional Knowledge

This essay deals with the issue of traditional knowledge and critically assesses the relevant provisions of the 1992 Convention on Biological Diversity. It also analyses “soft law” instrument, the so-called, Akwe: Kon Voluntary Guidelines. The essay illustrates the problems relating to the regulation of indigenous knowledge by examples from practice.

The European Court of Human Rights, Environmental Damage and the Applicability of Article 8 of the European Convention on Human Rights and Fundamental Freedoms Dubetska and others v Ukraine, European Court of Human Rights, (Application No. 30499/03), Judgment of 10 February 2011, Not Yet Reported

Therefore only a very brief introduction will be given. It may be said that a steadily growing jurisprudence of the ECtHR in the area of environmental protection has given certain grounds for drawing some general conclusions. The inconclusive, even piecemeal approach adopted in its fi rst cases has become more consistent and coherent. There is already a considerable body of important cases in which the Court developed its jurisprudential approach to environmental protection and further clarifi ed the role of Article 8 of the European Convention on Human Rights and Fundamental Freedoms (the ECHR) as the most common legal ground for lodging a complaint in cases with an environmental

The Interpretation and Application of the European Convention of Human Rights

The Interpretation and Application of the European Convention of Human Rights: Legal and Practical Implications, offers an analysis of important legal issues pertaining not only to the ECHR itself but also to the effect that it has on and also receives from other areas of international law

The International Court of Justice and the environment

This essay illustrates the Courts jurisprudence in environmental matters based on selected cases and including the two Nuclear Tests cases, the Nuclear Weapons Advisory Opinion and the Gabcikovo Nagymars case. The selected cases prove the changing and evolving attitudes of the Court and its judges towards the importance of the environment and secondly, they show how the Court deals with certain contemporary environmental principles and concepts, such as the precautionary principle, environment impact assessment, and intergenerational equity.

Customary Law, General Principles, Unilateral Acts

This contribution deals in particular with an undisputed and fundamental contribution of Nicaragua cases to the development of customary international law. The question of customary international law in the Nicaragua cases has become a central issue in the whole debate on this source of international law. The approach of the Court to the two-element structure of customary international law, has been a source of an invigorating scholarly discussion and speculation. To some extent the author of this contribution also engages into the debate how customary international law has developed further through judicial practice, in particular that of the International Court of Justice, not lacking in controversy. This contribution deals with general principles of law, focusing on the principle of res judicata. Finally, it deals with unilateral acts, focusing on the legal character of optional declaration within the system of compulsory jurisdiction of the International Court of Justice, reliance on which in the Nicaragua v. United States case was met with a very robust debate.