Tuesday, December 18, 2007

Armed Conflicts and the Environment

Lawyers and social scientists alike have for a number of years agreed that environmental conditions and scarcity of natural resources have the potential to act as a catalyst for armed conflicts. Such assertions have strengthened the normative link between environmental law and the law governing armed conflicts on a general level. This linking is already recognised, in general, in the area of international law of armed conflicts, which, inter alia, lays down that the methods and means of warfare are not limited; and in particular in the international law of armed conflicts which provides for the protection of the environment during hostilities such as Articles 35(3) and 55 of the 1977 Additional Protocol I to the 1949 Geneva convention.

In addition to this “environmental-armed-conflict-law”, considering the state of the environment as a cause of armed conflict has gathered consensus among policy-makers, diplomats and academics. This was most recently recognised when Al Gore, together with the IPCC, was awarded this year’s Nobel Peace Prize Similarly, conflicts like the one taking place in the Dafur region of Sudan is cited alongside the conflict in Somalia as examples of cases where scarcity of natural resources has lead to conflicts.

However, such claims have been questioned in a recent study carried out at the Norwegian University of Science and Technology in Trondheim (NTNU). The researches at NTNU argue that countries where natural resources are most heavily exploited are often the ones most likely to enjoy peace. They base their examination of exploitation of natural resources on the Ecological Footprint (EF) at country level and compare this to data on armed conflicts. Thus, an increase in the EF of a given country will often mean that the country is equally likely to be more peaceful, according to the NTNU team. In this light, the findings might not appear all that surprising. After all, the EF is a measure of consumption. Therefore, it is not surprising that countries with high consumption – the developed countries – are more likely to experience peace. On this account, the study would appear to confirm what most would consider common knowledge; namely that armed conflicts mainly occur in less-developed countries or countries in economic transition. The same countries that have lower EFs.

On a general level, it would thus appear that one can say little as to whether exploitation of natural resources lead to armed conflicts in light if the research. The case might be that it does so in certain areas and do not in others. There certainly seem to be a case for linking exploitation of natural resources to human rights violation in certain countries. However, the NTNU authors rightly point out that developed countries should fine it in their own interest to promote peace through the transfer of aid and technology to less-developed countries. Something that the developed world could perhaps have emphasised stronger at last week’s Bali negotiations and ought to keep in mind in their work towards the next climate summit in Copenhagen in 2009.

You can read about the NTNU study here from Science Daily and in its full length in Population & Environment Vol. 28, No. 6, pp.337-353 (available through Springerlink).

Sunday, December 16, 2007

The Scottish Government and its (lack of) Adherence to European Environmental Law

In light of Gerd’s excellent post on the Trump saga, today’s news from the Sunday Herald on the number of alleged breaches of European environmental law by the Scottish Government, does perhaps, not appear surprising. The article in the Sunday Herald is unfortunately the only information I have been able to obtain on the matter but here is, nevertheless, a short account of the story.

It is alleged that over the last six years the Scottish Government (former Scottish Executive) has been facing infraction proceedings for more than 60 specific breaches of European Community law relating to the environment. This number is in sharp contrast to the 32 breaches that the Scottish Government had admitted to be facing, in 2005, when asked to reveal the figures under then recently passed Freedom of Information legislation. The latest number of breaches only saw light after the Freedom of Information Commissioner (Kevin Dunion, who previously happened to head Friends of the Earth Scotland), ordered the Scottish Government to release the information. The breaches relate to a series of different areas of environmental law from waste, nature conservation and over fishing to control of sewage and lack of control over ozone depleting substances. In short, a full range of the EC’s environmental law pallet.

Although the breaches stem from the reign of the previous Labour administration, the onus is now on the current SNP government to make sure that this lack implementation, if not disregard, is changed. Thus, stronger commitments from the SNP to the environment are certainly welcomed. However, First Minister Salmond’s handling of the Trump application does not inspire confidence. At the same time, it is worth keeping in mind that many of the recent improvements of environmental law that have without doubt taken place in Scotland in general over the last decade, owe much to European law and less to Scottish benevolence towards the environment.

SNP – Scottish National Planning?

Scotland, the home of golf and an incredible number of golf courses is debating about yet another course. Donald Trump, the American multimillionaire applied for permission to establish a new ‘world class’ golf development complete with two championship golf courses and 1500 homes. Yet, rather than being grateful and hailing the millions of dollars potentially coming into Scotland, the nation is split into two camps. The crux is multi-layered – the golf course itself would impinge on one of the major conservation areas in the Northeast of Scotland; the residential development provides places for 1500 people without providing all the facilities and amenities that one would need in life – no shops, no medical surgery – a small town with just residences. The fear therefore is that it is only for the American super-rich and traffic in the area would significantly improve. Oh, by the way, it appears that one farmer has not agreed to sell his lands right in the middle of the prospective golf course, so there might just be another problem. On the plus side, though, many people hope for Trump’s millions to boost the local economy and industry, the creation of new jobs and the entrenchment of Scotland’s place on the global golf atlas. Emotions are running high and Scotland’s Northeast is polarised. But where is the legal aspect? Coming up, right here, stay tuned.
As if this controversy was not enough, a procedural dispute is added by the Scottish ‘Government’
[1]. Aberdeenshire Council, the competent planning authority, decided to decide on the planning application in its Infrastructure Services Committee (ISC). The application got rejected by the narrowest majorities possible – the casting vote of Committee chairman Councillor Martin Ford. The next day Finance Secretary John Swinney called the application in because of the national importance of the development.[2] The Scottish ‘Government’ obtains the right to call in applications from section 46(1) the Town and Country Planning (Scotland) Act 1997[3]. Yet, this is supposed to happen before the decision on the application. The Secretary of State can require any application ‘to be referred to him instead of being dealt with by planning authorities.’[4] And it makes sense at that stage, as there may be planning decisions that affect more than just a region so that all consequences can only be fully assessed on an higher level. However, the decision was taken by the planning authorities. Why exactly did the ‘Government’ call the application in before the decision was taken? The project and its importance have by no means be secret. Did the ‘Government’ assume the ‘right’ decision would be taken anyway due to the SNP majority in the Council? After the planning decision, the applicant has the right to appeal the decision or re-submit the application.[5] Notably, the Trump Organisation decided to do neither.[6] The existence of an appeal procedure to the Secretary of State (Section 47 Planning Act 1997) re-enforces the view that the ‘calling in’ of an application is not supposed to ‘correct’ a lawful application refusal. There are two ways for a Secretary of State to correct a lawful planning decision. The applicant can appeal against a rejection of an application or an attachment of conditions, section 47 Planning Act 1997. In contrast, sections 65, 68 Planning Act 1997 provide a procedure for the Secretary of State to amend a granted planning permission on its own initiative, where he considers this ‘expedient’. None of these procedures is applicable here. The Trump Organisation did not appeal and the application was refused.
The SNP later claimed that the ‘application’ was called in when there was still a question whether or not the Committee’s decision was final. As lawyers we might be inclined to accept that there can be doubts about the correct interpretation of any rule, even though it kind of makes the competent Minister (and its office staff) of the Scottish ‘Government’ appear as if he (they) would not know the planning procedures very well, highlighting the two (legal and non-legal) meanings of the term ‘competence’. Yet, even granted such doubts, it has been established since then that Committee’s decision was, indeed, final.
[7] So, how can the Scottish ‘Government’ possibly attempt to base any decision on such doubts? By law the decision was final from the time it was taken. Doubts about that cannot affect its legal status. Thus there was no application any more for the ‘Government’ to call in. The original application had been rejected. The procedure was closed.[8]
Curiously, this happened after Alex Salmon, First Minister of Scotland, met Donald Trump in a five-star hotel in Scotland.[9] The Scottish ‘Government’ claims there was no connection whatsoever between the two events. Salmon, and subsequently the SNP, later argued he was entitled and even bound to do so as constituency Member of the Scottish Parliament.[10] The matter concerned his constituency and he had previously met the opposing farmer and ‘Sustainable Aberdeenshire’, a local group opposing the project, too.[11] Why exactly he drove to the meeting in his First Ministerial car and why the meeting took place well outside his constituency[12] remains open so far. (Note in contrast that the meeting with ‘Sustainable Aberdeenshire’ had to be in his constituency office and appears to have been difficult to arrange. [13])

Two weeks after his casting vote on the matter, the Committee’s chairman got sacked from that position.
[14] Aberdeenshire Council voted him out 26 to 10 with 29 abstentions.[15] This might be yet another evidence for the controversy of the decision and prove that the majority of the Council was unhappy with the substance of the decision. However, it also leaves a feeling of unease, because he appears to have been sacked for doing his job, not to mention the shadows it casts over the integrity of the planning system.[16] As Councillor he was democratically entrusted by his constituency with making decisions on their behalf. So he did. The Council considered him trustworthy enough to chair the Committee. So he did. This potentially included a casting vote. Such he gave. His decision in its substance may not have been to everyone’s liking. Yet, he did exactly what he was elected for – by the people and their representatives. The assessment of the sacking depends on the nature of the Chairman’s position. Should the Chairman base his or her decision on what he or she believes is the Council majority or rather on what he or she personally believes to be the right decision on the specific matter for the applicant and the people? The unease about the sacking stems from his making a difficult decision on behalf of the people – as was his job – but getting the Council majorities in a highly controversial matter wrong.
There may well be a reason to reconsider the planning system and leave such controversial and important decisions to the full Council, so as to enable a wider representational basis.
[17] However, at the same time the Council should re-assure the people of the Northeast what the planning process is for. The leader of the SNP group on Aberdeenshire Council, Joanna Strathdee, said that the confidence in the planning process would need to be restored. Interestingly, she talked about the business’ and wider community’s confidence whilst at the same time attempting to show to the world that ‘North East Scotland really is open for business and serious about inward investment.[18] Should we wonder at this point whether ‘Sustainable Aberdeenshire’ and the ‘Royal Society for the Protection of Birds’ representing local people and environmentalists and opponents of the project are not within the wider community? Is the planning process in the Northeast of Scotland only supposed to help business?[19] The Trump incident makes it appear as if it was open to financial pressure or even ‘blackmail’, in which you can buy your planning permission if only your bid is high enough. Can politics trump a due planning process? What is the view of the Scottish National Party?
After all this, can the Scottish ‘Government’ still reject the project? Politically, they would lose the rest of their credibility. Yet, if they grant planning permission, there should great opportunities for specialists in planning law. It should be possible to prove a lack of objectivity in the planning process of this case.
It appears that the Scottish ‘Government’ has not served its people very well here.

[1] To explain the quotation marks for the non-Scottish reader, devolution only knows a Scottish ‘Executive’. The Scottish National Party, SNP, however, decided to re-brand the ‘Executive’ into ‘Government’. Thus, London refers to an ‘Executive’, Edinburgh to a ‘Government’.
[2] http://www.aberdeenshire.gov.uk/news/release.asp?newsID=599
[3] Hereinafter referred to as Planning Act 1997.
[4] Section 46 (1) Planning Act 1997, emphasis added.
[5] http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[6] Cf. the statements in http://news.bbc.co.uk/1/low/scotland/north_east/7127760.stm and http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[7] http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[8] Therefore, (SNP) Council Leader Anne Robertson’s comment, "If the decision of Ministers to call this application in keeps it alive, then we welcome this intervention." (http://www.aberdeenshire.gov.uk/news/release.asp?newsID=599) is inherently wrong. Legally, the was nothing that could have been kept alive. Instead, the ‘calling in’ would have to be seen as
a reanimation attempt.
[9] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[10] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm and http://news.bbc.co.uk/1/low/scotland/north_east/7142344.stm
[11] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[12] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[13] http://news.bbc.co.uk/1/low/scotland/north_east/7135266.stm
[14] http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm
[15] Three Councillors were not present for the vote. Cf. www.aberdeenshire.gov.uk/news/release.asp?newsID=601, http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm
[16] In this regard, I would very much agree with the concerns voiced by Councillor Ford. Cf. http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm
[17] Cf. http://www.aberdeenshire.gov.uk/news/release.asp?newsID=601 and http://news.bbc.co.uk/1/low/scotland/north_east/7126667.stm
[18] http://news.bbc.co.uk/1/low/scotland/north_east/7139605.stm (emphasis added).
[19] Joanna Strathdee, SNP leader Aberdeenshire Council, considered Councillor Ford’s position as Committee chairman as untenable because of his decision.

Wednesday, December 12, 2007

The International Transport Workers' Federation and The Finnish Seamen's Union

Yesterday the ECJ delivered yet another judgment in one of the most fascinating areas of European law – the intersection and conflict between social policy and European internal market laws. The judgment in the matter C-438/05 The International Transport Workers' Federation and The Finnish Seamen's Union is a preliminary ruling in a reference from the Court of Appeal (Civil Division) (England and Wales).

The case concerns a Finnish shipping company (Viking Line) that decided to reflag its ship to Estonia in order to benefit from lower wage costs. The International Transport Workers’ Federation took collective action on behalf of the Finnish seamen in order to dissuade Viking Line from effecting the proposed changes. Viking Line felt aggrieved by the action because it was of the view that it breached the company’s freedom of establishment per Article 43 ECT.

The EU Observer reports that the case ‘was closely followed across the EU as it appeared to encapsulate much of the debate on whether cheaper labour from eastern European member states - who joined the EU in 2004 - would undermine the higher labour protection of other member states, particularly in Scandinavian countries...Trade unions billed the case as one where the EU's internal market rules were pitted against social rights.’

The ECJ held inter alia that, although the right to strike is a fundamental right, the exercise of that right may be subject to restrictions. Those restrictions include the prohibition of collective action that is aimed at inducing an enterprise to enter a collective agreement that would preclude it from exercising its freedom of establishment. Another important aspect of this judgment is the emphasis that an undertaking may rely on Article 43 ECT as against a trade union. It will be left to Court of Appeal to apply the interpretative guidelines to the facts of the case.

To my mind, this is yet another example of the ECJ emphasising the free market ideal over social rights. Notwithstanding broader concerns, I must admit that I do think that the Court got it right on this occasion. The alternative would have denied workers in new Member States of some of the benefits of the internal market. Yet as part of the wider conflict between socially protective norms and the establishment of the internal market, there will certainly be many who feel that the EU is indirectly dismantling rights that the European polity has struggled to establish over the centuries.

Sunday, December 09, 2007

Will Don Quixote Have to Learn to Fly?

In Cervantes’ classic novel from the early 1600’s, Don Quixote de la Mancha bravely, but rather foolishly, sets out to fight windmills, which he mistakes for being the giants that any decent knight must fight. Although the encounter leaves Don Quixote battered, it now looks as if he will have to learn some new skills to keep up the fight.

According to today’s New York Times, flying wind turbines might be a thing of the future. Although this might seem a bit far fetched, it has certain advantages. For instance, the wind blows constantly and steadily in the altitude of 10.000 feet and some estimates suggest that the flying turbines at that altitude will be able to generate energy at a very competitive price per kilowatt, compared to conventional methods of on-the-ground production. The NY Times reports that the turbines have the potential to prove particularly useful in rural areas and, so far, interest has been registered from a number of developing countries. However, some problems remain. One such is the issue of maintenance – aircrafts require a lot of it and problems of actually operating the turbines will prove tricky as well. Nonetheless, any green method that has the potential to contribute to the lowering of emissions causing global warming deserves attention as well as a fair share of funding. In the meantime, we await response from the birdwatchers.

You can read the NY Times story here and an article on similar projects from the Economist here.

Science at the Circus

A report concerning ‘Wild Animals in Travelling Circuses’ concludes that there is no scientific evidence to support a ban on using wild animals in travelling circuses. The Working Group that composed the report was chaired by Aberdeen’s own Mike Radford, who must be a very brave man for having chaired a group that included staunch animal welfare activists, and circus owners whose livelihood depends on the status quo remaining unchanged.

The findings of the report go to the very heart of the debate concerning the precautionary principle. The report finds that the role of science (that is so often touted by environmentalists) must be limited in some cases. Indeed, it is right to say that legislative and administrative action is taken within certain bounds of rationality – in other words, there are certain questions where science can provide strong policy guidance, there are questions for which science can give an indication, and then there are questions where science provides no evidence whatsoever (read more here). According to Mr Radford’s report, the circus issue falls into one of the latter two categories:

"The overriding conclusion of this exercise is that our present state of knowledge about the welfare of non-domesticated animals used in circuses is such that we cannot look to scientific evidence for a steer in the development of policy; it is, ultimately, an entirely political decision. Once the relevant policy is decided upon, its implementation is essentially a question of politics and law; science, on this occasion, provides no relevant guidance as to the appropriate principle to be adopted."

The report was welcomed by industry. In contrast, Jan Creamer of the Animal Defenders International told the BBC that the study was an "utter waste of time and effort...We warned that Defra's insistence on only looking at scientific studies would result in too little evidence, because this is not a subject that has been of academic interest - so the studies are not there. However, there is a great deal of observational evidence including studies and video that indicates that animals in cages on the backs of lorries, constantly travelling in deprived and unstable environments, compromise animal welfare. What we need is a dose of common sense in this decision.”

So are environmentalists trying to have their cake and eat it? Can a ban be justified when we reasonably suspect, but simply do not know for sure, that harm is being done? While I have no doubt that science is of the utmost importance (see here), my view is that environmentalists are right to say that we cannot ask questions of science that cannot be answered. This is indeed a policy decision and the overriding political will, based on a reasonable and humane rationale, does seem to be opposed to wild animals being used in circuses.

Saturday, December 08, 2007

Europa - quo vadis?

I suppose that everybody takes something different from an academic presentation. A spin-off discussion from yesterday’s lecture and seminar by AG Sharpston concerned the functioning of the EC’s legal system. On this somewhat hazy Saturday morning, I’ve been thinking about how the legal system could be made both efficient and coherent. The following are some Saturday morning thoughts (which means that they might only make as much sense as Friday night was sober – you may be the judge of that).

It seems to me that the time has come for the Community to rethink its legal system completely. The legislative process is not entirely fit for purpose. A system of regulations and directives makes sense in the context of a Community whose competences are limited. However, Europe is fast-approaching a time when it will need to think in terms of Codes and Acts. Piecemeal legislation cannot be sustainable in the long-run.

To my mind, the debate regarding the possible adoption of a European Contract Code illustrates the inevitability of rethinking European law – we are faced with a choice between piecemeal legislation that is internally incoherent and that corrupts national laws of longstanding, or a codification of private law in a manner that has never before been performed. Neither option is risk-free, but it does seem that a thoughtful and calculated approach to codification would be preferable to the current practice (see the Principles of European Contract Law).

If we are to have European Codes and Acts, we will also need our courts to come up to speed. The ECJ cannot cope with a bigger volume of legislation if it does not become the apex of a more federal judicial system. We would need national courts to be complemented by European circuit courts, or we would need to allow national courts to adopt a truly European role, including the obligation to address new matters of interpretation. In any event the ECJ would then take on an appellate role, rather than a complementary role in reference procedures.

Any thoughts in the comments section would be much appreciated.

Thursday, December 06, 2007

But seriously, who is your daddy?

DIY sperm donation is a financially risky business. So says the Human Fertilisation and Embryology Authority after Andy Bathie was ordered to pay £400 per month in child support to his two biological offspring (see news reports here, here and here).

Andy donated sperm to a lesbian couple on the condition that he would not play any part in the parenting of the children. He explained that "These women wanted to be parents and take on the responsibilities that brings. I would never have agreed to this unless they had been a committed family. And now I can't afford to have children with my own wife - it's crippling me financially." The crux of Andy's problem is that he did not donate his sperm through a licensed fertility clinic. He is therefore not exempted from parental responsibility.

To add insult to injury, the non-biological mother bears no responsibility for the child’s maintenance. The House of Lords is presently discussing a Child Maintenance and Other Payments Bill that would give equal responsibility to the non-biological parent. However, as Natalie Gamble, a fertility law expert explained to The Guardian: "Currently a non-birth mother in this situation is not automatically recognised as the parent in law, so she is not financially responsible. If the law being proposed was to apply in Andy's case, his responsibility for the child would be passed to the non-birth mother."

Is Andy Bathie a victim of the law not keeping up with social developments, or is he simply a victim of his own folly? Is the law as its stands logical and social development flawed? There certainly is an argument on either side of this issue. My view is that the law has some catching up to do in societies where non-traditional families are accepted, and that both society and the law have some catching up to do where non-traditional families are not accepted. Any other views?

Wednesday, December 05, 2007

My Final Post

As many of you know, I was fortunate enough to be able to submit my thesis last week. Hopefully it will produce a good result with the examiners soon. And not a moment too soon as well. As it turns out we may not even be in Aberdeen for much longer, because you really don't know what will happen when you wake up on the morning.

I particularly want to thank two of our colleagues whom I've had the great pleasure to meet, Ole and Jernej, who really helped me a great deal through the whole PhD experience. I'm not sure I would have made it through without their support; and I look forward to reading great work from them in the years to come. Both are great colleagues, and I hope lifelong friends.

I no longer feel it's appropriate for me to continue posting here. I've enjoyed writing here, and I hope others have enjoyed reading it. Of course I'll be continuing my own blog. I wish everyone the best of luck here; I hope you all can maintain the level of informed debate and continue to foster intellectual honesty.

Saturday, December 01, 2007

AG Sharpston at the University of Aberdeen (Updated)

On Friday 07 December Ms Eleanor Sharpston, Advocate General of the European Court of Justice, will return to the University of Aberdeen for the second consecutive year.

She will deliver a lecture to LL.B. students in European Union Law (Institutions and Judicial System)’. The lecture will address ‘The role of the Advocate General’. All are welcome to attend.

Following her recent opinion delivered in Case C-212/06 Government of the French Community and Walloon Government v Flemish Government (the Belgique Francophone case), Ms Sharpston will also deliver a seminar to postgraduate students and members of staff to continue last year’s discussion regarding citizenship of the European Union. The title of the seminar is ‘Civis europeus – quo vadis?’

The programme is as follows:

12:00 ‘The role of the Advocate General’ (Regent Building, Lecture Theatre 12)
15:00 ‘Civis europeus – quo vadis?’ (KCF 22)

Ms Sharpston comes to the University at the invitation of the
School of Law and the Legal Research Society. We are thankful to the Law Society for their assistance in the organisation of this event.