The synergies between the Paris Agreement and the SDGs: An opportunity for national governments to achieve key climate targets

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Dr Noah A. Izoukumor, Member of the Environmental Law and Sustainability Research Group

Introduction

The Paris Agreement (PA) was adopted on the 12th of December 2015.[1] The central aim of the PA is to keep global temperature rise below 2 degrees Celsius above pre-industrial levels or even further to 1.5 degrees Celsius.[2] To achieve this aim, Parties to the PA made individual commitments through their Nationally Determined Contributions (NDCs). The ‘NDCs, are actions that Parties to the PA plan to undertake to address climate change’ at the national level.[3] Most of the initial NDCs made commitments to reduce emissions of greenhouse gases by 2030.[4]

 In 2015, the same year the PA was adopted, the United Nations also adopted the Sustainable Development Goals (SDGs) to replace the Millennium Development Goals.[5] The SDGs are 17 aspirational goals and 169 associated targets. The SDGs are also meant to be achieved by 2030.

In other words, both the PA and SDGs were adopted in 2015, and the targets and obligations were to be achieved by 2030.[6] This raises some critical questions about whether it is possible to align the obligations of the PA with key related SDGs, or is it possible to achieve key SDGs targets that are linked with the PA simultaneously since both targets are meant to be achieved by 2030?  On the contrary, it was argued that how the alignment of the PA with the SDGs is possible considering that the SDGs and the PA are two separate instruments.[7]  In this research blog, the aim is to briefly assess the possibility of the alignment between PA obligations with key SDGs, and the key benefits of such alignments at the national level.

Are there synergies between climate change and the SDGs?  

There is emerging research on the integration of climate change and the SDGs.[8]  Nerini and others elaborated on the possible alignment of climate change and SDGs. They acknowledged that in most countries, climate change and sustainable development remain separated.[9] According to them, ‘capitalizing on synergistic actions can enable both sets of objectives to be met more quickly, efficiently and effectively.’[10] 

Antwi-Agyei and Dougill investigated the alignment of SDGs and NDCs.[11] They examined NDCs submitted by 11 West African states and their link to key SDGs.[12] Their investigation shows the strong commitment of West African countries to food security which can be aligned with related SDGs.[13] They argued that this alignment provides opportunities for national development on the low carbon pathway.[14] 

Also, a critical assessment of the provisions of the PA and the SDGs unveils that there is a synergy between the PA and some of the SDGs. For instance, SDG targets 15.2 and 15:3 deal with combating desertification and sustainable management of all forests. These targets 15.2 and 15:3 of the SDG are related to Article 5 (2) of the PA, which emphasised sustainable forest management practices. Also, SDG targets 7:1 and 7:2 deal with the development of renewable energy. These targets have a direct link with Article 10 (1) (2) Paris Agreement which emphasised the development of technology.

The above examples show that there is a link between the PA and some key SDGs. The implication of the relationship between the PA and the key SDGs is that the achievement of the targets of the PA could lead to the achievement of related SDGs targets. So, the next question is what the likely benefits of the synergies between the PA and the SDGs are.  

The benefits of synergies between the PA and SDGs

The synergies between the PA and key SDGs present an opportunity to collaborate amongst key relevant climate change Ministries, Departments and Agencies (MDAs), and SDG implementation agencies.[15] Recent development in countries like Mexico, Colombia, and Vietnam show how MDAs and SDG implementation agencies can collaborate and implement key related targets in both SDGs and PA.

In 2017, three MDAs in Mexico collaborated to implement SDG and NDC targets.[16] The office of the President of Mexico, which is responsible for the SDG implementation, the Ministry of Environment and Natural Resources, and the National Institute of Ecology and Climate Change which are responsible for the NDC support close coordination of SDG and NDC implementation.[17] Also, in Japan, there is a well-coordinated institutional arrangement of SDG and NDC implementation. Relevant institutions for the implementation of SDG and NDC are led by the Global Warming Prevention Headquarters, chaired by the prime minister, including relevant cabinet ministers.[18] In Colombia, an Inter-Agency Commission is established to implement the Post-2015 Development Agenda.[19] In Vietnam, a National Council for Sustainable Development and Competitiveness Enhancement and a working group of the Council were established. These two organisations are to address key achievable SDGs that are linked to climate change.

Again, the nexus between the PA and key SDGs will enable key climate change-related MDAs to match budgets and channel funds to key priority areas such as the energy and forest sectors. This is exactly what the Mexican government did where MDAs were requested to match budget programmes to the top priority areas of SDG and national goals.[20]

However, there are key challenges to the alignment between PA and SDGs. First, climate change instruments and the SDGs agenda have their respective histories and already established implementation agencies in different sectors.[21] This means there are likely issues of functional overlap among ministries while implementing interlinkages. Second, the alignment could lead to a trade-off with perceived unaligned SDGs.[22] This means that national governments may give less attention to SDGs that are not directly linked to climate change obligations, such as SDG 4, which talks about free education.

Despite the likely challenges, it is argued that the benefit of aligning the PA and the SDGs cannot be overemphasised. The alignment presents an opportunity for national government agencies to collaborate, and channel funds to key related targets in both PA and key SDGs. The collaboration will enable both sets of objectives to be met more quickly, efficiently, and effectively.[23] 

References


[1]L Rajamani, ‘The Warsaw climate negotiations: emerging understandings and battle lines on the road to the 2015 climate agreement’(2014) 63(3) International & Comparative Law Quarterly 721-740; L Rajamani, ‘The Durban platform for enhanced action and the future of the climate regime’ (2012) 61 (2) International & Comparative Law Quarterly,  501-518.

[2] Article 2 UN General Assembly, United Nations Framework Convention on Climate Change/ Adopted at the COP 21 in Paris, France, 12 December 2015 FCCC/CP/2015/L.9/Rev.1 accessed 1st April 2022.

[3] FZ Taibi and S Konrad, Pocket Guide to NDCs under the UNFCCC (ECBI 2018) 1-2.

[4] For instance, the EU and its member states committed to a domestic reduction of 40% by 2030. See Intended Nationally Determined Contribution of the EU and its Member States (2015) available at  LV-03-06-EU INDC (unfccc.int)> Accessed  2nd April 2022.

[5]Millennium Development Goals and beyond 2015 < United Nations Millennium Development Goals > Accessed 6th April 2022.

[6] However, net zero emission is possible by 2050 and most countries have updated their NDCs in line with 2050 deadline. See The update of the nationally determined contribution of the European Union and its Member States available at EU_NDC_Submission_December 2020.pdf (unfccc.int) Accessed  7th  April 2022.

[7] Paragraph 55. UN General Assembly, transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1.; K. Shamin and R Kibugi, ‘Brief on Sustainable Development Goal 13 on Taking Action on Climate Change and Its Impacts: Contributions of International Law, Policy and Governance’ (2017) 13 McGill Journal on Sustainable Development Law 183.

[8] P Antwi-Agyei and others, Identifying Opportunities for Coherence between the Intended Nationally Determined Contributions, and the Sustainable Development Goals:  The Case of ECOWAS Member States (Sustainability Research Institute School of Earth and Environment 2017) 5; The State of The World’s Forest, Forest Pathway to Sustainable Development, (Food and Agriculture Organization of the United Nations (2018) 100-107, available at < http://www.fao.org/3/I9535EN/i9535en.pdf > Accessed 2nd April 2022; Climate Change and SDG Synergy Conference, Background Paper Leveraging Climate Change and SDG Interlinkages: Country Experiences (TERI School of Advanced Studies for UN DESA 2019) available at < https://sustainabledevelopment.un.org/content/documents/22155Background_PaperTERILeveraging_Climate_Change_and_SDG_Interlinkages.pdf > Accessed 2nd April 2022 ; Food and Agriculture Organization of the United Nations,  Climate-smart agriculture Sustainable Development Goals, Mapping interlinkages, synergies and trade-off s and guidelines for integrated implementation (Food       and Agriculture Organization of the United Nations Rome, 2019) 84-101 available at<  http://www.fao.org/3/ca6043en/ca6043en.pdf  > Accessed 2nd  April 2022; V Masson-Delmotte,  T Waterfield and others (eds), Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (IPCC 2018)  19 -20, available at https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_SPM_version_report_LR.pdf > Accessed 3rd April 2022.                

[9]  F Nerini and others , ‘Connecting climate action with other Sustainable Development Goals’ (2019) 2 (8) Nature Sustainability, 674-680 at 678.

[10] Ibid.

[11] P Antwi-Agyei and A Dougill, How best to align planning for Nationally Determined Contributions and Sustainable Development Goals:  West African Lessons (Sustainability Research Institute School of Earth and Environment 2018) 2.

[12] Ibid .

[13] Such as SDGs 1, 2, 6, 7, 13 and 15. Ibid .

[14] Antwi-Agyei and others (n 11).  

[15] M Bouyé, S Harmeling and NS Schulz , Connecting the dots: Elements for a joined-up implementation of the 2030 Agenda and Paris Agreement (Deutsche Gesellschaft für Internationale Zusammenarbeit 2018) 16; Sustainable Development Goal Knowledge Platform, Global Conference on Strengthening Synergies between the Paris Agreement and the 2030 Agenda for Sustainable Development: Maximizing Co-Benefits by Linking Implementation across SDGs and Climate Action (United Nations 2019) at 50 available at <https://sustainabledevelopment.un.org/climate-sdgs-synergies2019 > Accessed 6th April 2022.

[16]  Bouyé and others (n 15).

[17] Ibid.  

[18] Sustainable Development Goal Knowledge Platform (n 15).

[19] OECD, Opening of the Inter-ministerial Commission on OECD Affairs, Opening remarks by Angel Gurría OECD Secretary-General October 2019 – Bogota, Colombia.

[20] Bouyé and others (n 15) 48.

[21]Sustainable Development Goal Knowledge Platform (n 15).

[22] Sustainable Development Goal Knowledge Platform(n 15).

[23] Nerini and others (n 9).  

Stifling Access to Sanitation through Privatisation of Public Facilities in Ghana: The Cases of Human Rights and Dignity

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Blog by Dr. Felix Nana Kofi Ofori, REACT Humanitarian Network, Oxford, UK. Former PhD student, Bristol Law School, UWE Bristol.

Human well-being, now and in the future, depends on a healthy environment characterised by access to safe sanitation in society. [1] This blog examines the challenges confronting majority of Ghanaians whose access to sanitation, is hindered by privatisation and limited provision of public facilities; and where these are available, they are exorbitantly expensive thereby stifling and violating the dignity and human rights of the people. [2]

Access to sanitation as a right, evokes controversies in international human rights jurisprudence compared to the conventional rights. However, it is no secret within the Ghanaian society, that majority of the citizenry in cities, regional centres, including the remotest communities of the country, lack access to sanitation. [3] Fundamentally, lack of access to sanitation is a violation of the human rights and dignity of Ghanaians; as enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR), [4] as adopted by the United Nations General Assembly (UNGA), in 2010).[5] However, under Ghana’s liberalisation and privatisation agenda, which was promoted by the IMF/World Bank[6], majority of public toilet/latrine facilities in the country were privatised with a view  to enhance the efficient management and provision of services for the people. Furthermore, since all human rights are interdependent there is little doubt that access to sanitation is critical to achieving human dignity which is at the fore-front of protecting human health.[6a] [6b]

As society evolves so the ambit of rights grow to protect and promote the welfare and dignity of peoples globally, and particularly in this context, Ghana. Sanitation is crucially one area in which the dignity of most Ghanaians is violated because of the failure of successive governments to establish facilities to protect this right. [7] In its preamble, the United Nations Charter provides that “all human beings are born free and equal in dignity and rights. [8] Thus, there can be no realisation of human rights without respect for human dignity; therefore, sanitation should be given critical priority by the government in allocating budgetary and physical resources to ensure that Ghanaians gain access to effective sanitation services. The duty to establish sanitation and hygiene facilities in Ghana as other countries, spans three obligations- availability, accessibility and affordability. [9] 

First, availability means that the government establishes public sanitation facilities within reasonable distance of the people’s reach; whilst, ensuring that poorer communities are not denied access to sanitation for want of paying. [10] Second, accessibility, is defined by the WHO-UNICEF Joint Monitoring Programme and Water Supply, Sanitation and Hygiene, as a standard 30 minutes time for someone to go to and return from a sanitation facility. [11] Also, it is the responsibility of the government and local authorities to ensure that children and persons with disabilities coupled with the location of the sanitation facilities do not impede access to such services. Third, affordability, as a human rights criterion, requires that “access to sanitation facilities and services be made reasonably affordable to all peoples, especially in the poorer part of cities and deprived communities of a county”. [12] Whilst the UNDP sets a threshold of 3 per cent, that by the Organization for Economic Cooperation and Development is 4 per cent and that by the Asian Development Bank is 5 per cent respectively. [13] Despite the above established thresholds, the government and public agencies responsible for sanitation services in Ghana, continue to violate the right to sanitation; by failing, to adopt creative strategies to ameliorate any hardships pricing mechanisms impose on the people regarding access to sanitation services.

Strategically, the World Bank plays vital roles in the development of nations, especially Ghana, by offering financial and policy directions to help them improve their socio-economic services of which sanitation constitutes an integral part. Privatisation of water and sanitation services is one area in which the World Bank’s strategic guidance had created mixed consequences in Ghana. The World Bank opines that private participation in the sanitation services is beneficial to the state and its people because it introduces efficient and judicious management of services; and it secures the requisite funding to repair and maintain old infrastructures. [14] Conversely, larger parts of communities in cities and town throughout Ghana practise open defecation due to limited or non-availability of sanitation facilities. [15] The majority view is that privatisation not only stifles access to sanitation in further violation of the people’s dignity, but also breaches established obligations of governments to protect access to sanitation, as enshrined in International human rights law. [16] This resonates with the premise that economic and political expediencies coupled with national policies cannot be deployed by the government and its agencies to commit blatant illegalities concerning the implementation of privatisation agenda.

Primarily, the right to sanitation is considered as a private responsibility enjoining the individual to build his/her own latrine or pay to connect to the sewerage system; however, where individuals cannot afford to pay for this responsibility, the state has to bear this duty in two respects. First, the State should adopt the necessary measures such as tariff schemes or subsidies to ensure that services are affordable; and second, implement practical framework and enabling environment to guarantee access to sanitation. [17]

Copious evidence suggest that privatisation stifles access to sanitation which in turn undermines the human rights and dignity of Ghanaians, especially those in poorer communities, who lack the financial backing to either build or pay for sanitation services. The right to sanitation is an enshrined human right obligation of governments in the international community, including Ghana, requiring that access is protected and promoted without citing arguments of economic, social or political expediencies. Although Ghana has finite resources like other states, it is obliged to allocate portion of its budgetary resources to ensure that access to sanitation and hygiene facilities are progressively realised in accordance with international and constitutional mandates. Similarly, the duty to protect access to sanitation extends to supervising the implementation of privatisation contracts without compromising the dignity and human rights of Ghanaians.

References

[1] <www.ohchr.org/EN/Issues/WaterAndSanitation/SR/Water/Pages/Progressiverealization.aspx. >Accessed December 13, 2021.

[2]Transforming our World: The 2030 Agenda for Sustainable Development (General Assembly Resolution 70/1, para. 5).

[3] UNICEF Ghana: “Water, Sanitation and Hygiene” < https://www.unicef.org/Ghana/Water-Saniation-and-Hygiene> Accessed December 14, 2021.  

[4] International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966) UNTS, Art. 2 (1)

[5] Special Rapporteur on Human Rights to Safe Drinking Water and Sanitation, Caterina de Albuguerque, Report, Mission to Egypt, 50, UN. Doc.A/HRC/15/31/Add.3 (Jul. 5, 2010).

[6a] Vienna Convention on the Law of Treaties (1969),  Adopted May 23, 1969, entered into force on January 27, 1980, United Nations, Treaty Series, vol. 1155,p 331.

[6b] The World Bank-FAQ-World Bank Group Support for Water and Sanitation Solutions<https://www.worldbank.org/en/topic/water/brief/working-with-private-sectors-to-increase-water-sanitation-access > Accessed December 14, 2021.

[7] Gould, C. and Brown, C. Sanitation Challenge for Ghana Dignified City Award (Stage 2), May 2020, IMC Worldwide.

[8] The Charter of the United Nations and the Statute of the International Court of Justice, UN, New York (1997) 3.

[9] A/HRC/45/10, “Progressive Realization of the Human Rights to Water and Sanitation” Report of the Special Rapporteur on the Human Rights to Safe Drinking Water and Sanitation, September 14- October 2, 2020.

[10] A/HRC/45/10, Ibid. see note 9, para. 35

[11) Ibid. see note 9, para. 37

[12] Ibid. see note 9, para. 39

[13] A/HRC/30/39, Report of the Special Rapporteur  on the Human Right to Safe Drinking Water and Sanitation: Addendum, para. 25.

[14] The World Bank –FAQ – World Bank Group Support for Water and Sanitation Solutions < https://www.worldbank.org/en/topics/water/brief/working-with-private-sectors-to-increase-water-sanitation-access-> Accessed December 14, 2021.

[15] The World Bank, Ibid.

[16] Winkler, T.I., The Human Right to Sanitation (2016), University of Pennsylvania Journal of International, Vol.37 (4) 1331-1406.

[17] Eide, A., Economic, Social and Cultural Rights as Human Rights in Economic, Social and Cultural Rights- Textbook, 9, 24 (Asbjorn Eide, Catarina Krause and Allan Rosas eds, 2nd ed., 2001)

The role of judiciary in climate change litigation – the rise of a promising opportunity to combat climate change

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By Christina Schroeder, LLM Student, Member of Environmental Law and Sustainability Research Group.

Climate change and how to combat it is an omnipresent issue. Whereas in the past climate change and its consequences were talked down, they are now seen as the “biggest threat modern humans have ever faced”[1] and referred to as a “crisis multiplier”[2] with the need to act in time, requiring global cooperation.[3]

The previous attempt to achieve climate protection at the political level by means of the Paris Agreement[4] can be considered a failure due to the lack of implementation[5] by the states.

This is where the consideration comes into play as to whether court rulings offer a possibility to effectively combat climate change. Climate change litigation is also increasing due to the influence of many young people who are campaigning for more climate protection with the help of the courts or by organising global climate strikes.[6]

There are several reasons why courts can provide an opportunity to effectively combat climate change through their judgments. In contrast to climate agreements as for example the Paris Agreement, courts take a clear line. Cases have to be decided and thus a clear result has to be reached; while political leaders so far have failed to implement measures to reach targets of the Paris Agreement.[7] Courts are also suited to their function of enforcing decisions promoting more climate protection. In the context of climate change litigation, judicial lawmaking is also becoming increasingly important. Courts decide whether existing laws need to be reinterpreted or amended when they are deemed unfair in their application to specific cases.[8]

Judicial successes in effectively combating climate change can be seen in several landmark rulings, especially in strategic cases[9] where courts make decisions by ordering the improvement or revision of current laws,[10] as in the cases of Friends of the Irish Environment v Ireland[11] and Neubauer et al. v Germany.[12]  For example, in the case of Friends of the Irish Environment v Ireland[13] the Supreme Court of Ireland quashed the National Mitigation Plan, as the court found that the plan was not detailed enough to effectively reach the goals within Ireland’s 2015 Climate Act.[14] The court also argued that especially for a normal citizen, the plan was not sufficiently specific enough relating to what actions would be taken until 2050 to give effect to the 2015 Climate Act of Ireland.[15] In this respect, the decision of the Supreme Court of Ireland has set the course for the fight against climate change but has so far contributed little to it due to a lack of political implementation of a new Mitigation Plan.

Recently in 2021, the German Federal Constitutional Court decided that the Federal Climate Change Act[16] does not sufficiently protect the future generations from the impacts of climate change.[17] The Court also found a duty of the German government to actively protect life and health of its citizens.[18] After the ruling in Germany, the German government initiated an amendment of the Climate Protection Act in a record time.[19] Under the amended Climate Protection Act by the German government from 24 June 2021, the climate protection targets have been tightened and now aim for Germany to become greenhouse gas neutral by 2045 which is five years earlier compared to the previous target in 2019 and also ahead of the EU’s target date.

Some court cases are also aiming to put pressure on the legislator to do more for climate protection. This can be seen in the cases of the Dutch Supreme Court deciding the case of Urgenda Foundation v. State of the Netherlands[20] in 2019 which identified a legal duty of the government to prevent and combat climate change more actively;[21] and the Colombian Supreme Court ruling in 2018 in favor of 25 children in Colombia who sued the Colombian Government for failing to prevent deforestation and therefore not taking actions against climate change.[22]

In Urgenda case, the Dutch Supreme Court invoked the government’s human rights obligations. In order for these to be fulfilled, the court orientated itself on a proposed common ground, which is the targeted reduction of greenhouse gases.[23] This ruling in particular is seen as very successful due to its transferability to other European countries and has already given rise to similar climate lawsuits.[24]

In the Demanda Generaciones Futuras case, the Colombian Supreme Court ordered the government to develop a plan for environmental protection of the Amazon, and at the same time declared the Amazon as an entity with own rights to be protected from destruction. Despite this important ruling, the government has not been able to adequately protect the Amazon.[25] This is not due to the ruling of the Colombian Supreme Court itself, which aimed for comprehensive protection, but solely to the lack of initiatives and measures adopted by the political leaders. Indeed, the approach of using the ‘Rights of Nature’ to protect nature is problematic in this respect, as nature is dependent on human representation. This can work well, as in New Zealand, where the Whanganui River[26] is represented by indigenous people. In contrast, the consideration of granting rights to the Great Barrier Reef remains a concern due to a lack of representation.[27]

The cases above show that courts can be an effective way to combat climate change.

In the context of behavioral effectiveness, the courts are moderately successful, as these decisions cannot directly influence people and their behavior, but they can indirectly influence people’s behavior by stimulating social debate and media attention.[28] In addition, courts can exert direct influence on legislators through their rulings.[29] This is also done while preserving the separation of powers, since despite judicial lawmaking, courts do not become politically active. Thus, the judiciary’s role to solve problems remains complicated. This is due to the fact that the separation of powers and the role of the courts require both political and social components in order to effectively implement a decision.[30] Courts cannot fight climate change on their own, but they can positively promote it.


[1] United Nations Security Council, Press Release SC/14445 ‘Climate Change ‘Biggest Threat Modern Humans Have Ever Faced’, World-Renowned Naturalist Tells Security Council, Calls for Greater Global Cooperation’ 23 February 2021 <https://www.un.org/press/en/2021/sc14445.doc.htm> accessed 14 June 2021.

[2] Ibid.

[3] Ibid.

[4] Paris Agreement, 22 April 2016, in force 4 November 2016, C.N.92.2016. Treaties-XXVII.7.d (2015 Paris Agreement).

[5] Sandrine Maljean-Dubois, ‘Climate Change Litigation’ Max Planck Encyclopedia of Procedural Law (2019) <https://halshs.archives-ouvertes.fr/halshs-02281274/document> No.4 accessed 24 August 2021.

[6] Ibid.

[7] Sandrine Maljean-Dubois, ‘Climate Change Litigation’ (n 5) No.4.

[8] Ibid.

[9] Orla Kelleher, ‘The Supreme Court of Ireland’s Decision in Friends of the Irish Environment v Government of Ireland (“Climate Case Ireland”)’ (EJIL, 9 September 2020) <https://www.ejiltalk.org/the-supreme-court-of-irelands-decision-in-friends-of-the-irish-environment-v-government-of-ireland-climate-case-ireland/> accessed 9 July 2021.

[10] Joana Setzer, Catherine Higham, ‘Global Trends in Climate Change Litigation: 2021 Snapshot’ (Policy Report July 2021) <https://www.lse.ac.uk/granthaminstitute/wp-content/uploads/2021/07/Global-trends-in-climate-change-litigation_2021-snapshot.pdf> 12, accessed 9 July 2021.

[11] Friends of the Irish Environment CLG v The Government of Ireland, Ireland and the Attorney General (2019) IEHC 747.

[12] Neubauer et al. v Germany, Court order of 24 March 2021, 1 BvR 2656/10.

[13] Friends of the Irish Environment CLG v The Government of Ireland, Ireland and the Attorney General (2019) IEHC 747.

[14] Climate Action and low Carbon Development Act 2015, 46/2015, into force on 10 December 2015.

[15] Mary Carolan, ‘Supreme Court Quashes Government’s Plan to Reduce Greenhouse Gases’ (The Irish Times, 31 July 2020) <https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-quashes-government-s-plan-to-reduce-greenhouse-gases-1.4318578> accessed 10 July 2021.

[16] Climate Protection Act Germany (Klimaschutzgesetz), into force on 12 December 2019, amended on 24 June 2021.

[17] Ralf Bodle, Stephan Sina, ‘The German Federal Constitutional Court’s Decision on the Climate Change Act’ (Ecological Institute Berlin, 2021) <https://www.ecologic.eu/18104#:~:text=In%20a%20decision%20published%20in,by%20the%20end%20of%202022> accessed 10 July 2021.

[18] Ibid.

[19] Alice Boldis, Christian Lütkehaus, ‘How a Court Ruling Changed Germany’s Climate Protection Act’ (Pinsent Masons, 20 July 2021) <https://www.pinsentmasons.com/out-law/analysis/court-ruling-germany-climate-protection-act> accessed 2 August 2021.

[20] Urgenda Foundation v The State of the Netherlands (20 December 2019) 19/00135.

[21] Urgenda, ‘Landmark Decision by Dutch Supreme Court’ (Urgenda.nl, 2020) <https://www.urgenda.nl/en/themas/climate-case/> accessed 5 August 2021.

[22] Demanda Generaciones Futuras v Minambiente, Colombian Supreme Court (5 April 2018) STC 4360-2018.

[23] Laura Burgers, André Nollkaemper, ‘A New Classic in Climate Change Litigation: The Dutch Supreme Court Decision in the Urgenda Case’ (EJIL, 6 January 2020) < https://www.ejiltalk.org/a-new-classic-in-climate-change-litigation-the-dutch-supreme-court-decision-in-the-urgenda-case/> accessed 8 August 2021.

[24] Anke Wonneberger, Rens Vliegenthart ‘Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government’ (n 45) 699.

[25] Alex Guillau, ‘The Colombian Government has Failed to Fulfil the Supreme Court’s Landmark Order to Protect the Amazon’ (Dejusticia, 5 April 2019) < https://www.dejusticia.org/en/the-colombian-government-has-failed-to-fulfill-the-supreme-courts-landmark-order-to-protect-the-amazon/> accessed 25 August 2021.

[26] New Zealand, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 / Rapid Transition Alliance, ‘The Rise of the Rights of Nature’ (Rapid Transition, 11 March 2019) <https://www.rapidtransition.org/stories/the-rise-of-the-rights-of-nature/> accessed 16 August 2021.

[27] Randall S. Abate, Climate Change and the Voiceless (Cambridge University Press 2019) 161.

[28] Anke Wonneberger, Rens Vliegenthart, ‘Agenda-Setting Effects of Climate Change Litigation: Interrelations Across Issue Levels, Media, and Politics in the Case of Urgenda Against the Dutch Government’ (2021) 15 Environmental Communication 699.

[29] Jaqueline Peel, Hari M. Osofsky, ‘Clime Change Litigation’ (2020) Annu. Rev. Law. Soc. Sci.33.

[30] Luke Elborough, ‘International Climate Change Litigation: Limitations and Possibilities for International Adjudication and Arbitration in Addressing the Challenge of Climate Change’ (2017) 21 NZ J Envtl L 125.

Combating environmental degradation in Nigeria through the recognition of the Rights of Nature

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By Cleverline T Brown, PhD student, a member of the Environmental Law and Sustainability Research Group.

Environmental degradation has increasingly plagued the human and natural environment especially since the discovery of petroleum in Nigeria. The right to a clean and healthy environment although provided for in the Constitution,[1] has been seen to be non-justiciable[2] except by alternative pathways such as through the application of the African Charter on Human and Peoples Rights (ACHPR) [3] or in a foreign court. It is also a fact that environmental pollution cases have been lost due to technicalities.[4] This has emboldened some petroleum sector operators to continue bad environmental practices. Hence the need for alternative ways to combat environmental degradation from bad environmental practices such as the recognition of the rights of nature.

Global development of rights of nature

The concept of the rights of nature is an emerging field that is gradually being recognised by countries around the world. While the rights of human victims of environmental harm are protected under human rights law,[5] other victims of environmental harm such as nature and natural resources, exist and have been left behind by policy and law-making thereby rendering them invisible and silenced in the search for justice.[6] Rights of nature are rights that nature and natural resources possess, as distinct from the right of humans to a healthy environment. It can be a reformulation and expansion of existing human rights and duties in the context of environmental protection.[7] In some jurisdictions like India, New Zealand, Ecuador, Brazil, Columbia, Bolivia, nature is accorded human status.[8] This implies the right to be protected just like human beings under human rights laws; and the right to enforce such rights under the law.[9] Stone noted that until the rightless thing receives its right, we cannot see it as anything but a thing for the use of ‘us’ – those who are holding the rights at the time.[10] More countries are legally recognising the rights of nature in their domains. In February 2021, the Innu Council of Ekuanitshit recognised the Magpie River, a 3000km (186 miles) waterway in the cote Nord region of the Canadian province of Quebec, as a legal person.[11] Some of the sources of the rights of nature in these jurisdictions include case law,[12] the Constitution and other legal instruments.[13]

Rights of Nature in Nigeria

The non-justiciability of the environmental rights provisions in the Constitution of Nigeria has prompted victims of environmental harm to seek access to courts in pursuit of justice, through other pathways.[14] While this effort has yielded some positive results, it has not yielded an express pronouncement on the rights of nature and natural resources per se to be protected, specifically in Nigeria. When environmental harm occurs, the rights sought to be protected are the rights of the human victims alone and these rights do not extend to the protection of nature. Recognition of the rights of nature in Nigeria can expand the definition of ‘victims of environmental harm’ and extend the frontiers on which environmental degradation can be combatted. The closest to rights of nature practiced in Nigeria is the designation of protected areas. These areas include forest reserves and plantations, national parks, nature reserves and gazetted forests.[15] This implies that the areas so designated are protected against farming, hunting, trapping, timber cutting and other human activities. It does not, however, protect these natural resources and rivers from the effect of oil spills and other negative impacts of petroleum sector activities.[16] This does not also give the protected areas personhood or the right to enforce the protected status. Legally recognising the rights of nature in Nigeria could be a game-changer in the move to combat environmental harm especially from petroleum sector operations. It is argued that an outright pronouncement on the rights of nature and natural resources can provide an alternative option in the fight against environmental degradation from environmental harm and easy access to courts to enforce those rights.

Challenges of Rights of Nature

While some gains have been made by the countries that have taken the lead in establishing rights of nature,[17] challenges remain on the full realisation of the effect of the rights of nature. First, it is difficult to assess how far the courts will go on the issue of enforcement of such rights. This is because the concept of rights of nature has not been rigorously tested before the courts to establish precedents.[18] Second, like every other law, the challenges of compliance and enforcement remain due to the lack of political will to enforce compliance with the laws.[19] Third, governments still place the exploitation of natural resources for gains over the protection of nature and natural resources. This is because often, the government relies on the proceeds from the exploitation of natural resources to provide basic amenities for its citizens.[20] Fourth, individuals and small businesses fear that such rights will lead to a multiplicity of lawsuits threatening their businesses and livelihood.[21] Fifth, it is believed that existing legal and statutory frameworks adequately cater to protect nature and new laws stipulating new rights are not required.[22]

Conclusion

The significance of the attention on the rights of nature is vital to the fight against global environmental degradation. If more countries recognise the rights of nature, it could put a check on how nature is interacted with by human beings because these rights will be put into consideration in such interactions. Such considerations can be in form of complying with environmental regulations, policies and standards. Therefore, it is contended that if compliance and enforcement of environmental laws are effectively observed, the environmental rights of human beings and nature can easily be realised.

Recognition of the rights of nature could lead to stronger natural resource laws. Legally recognised rights of nature and the human right to a healthy environment can work simultaneously to promote effective compliance and enforcement because humans have an interconnectedness with the natural world and should acknowledge the rights of nature to exist, persist and maintain its vital cycles.[23] The legal recognition of the rights of nature by Nigeria can be an effective legal tool to save the Nigerian environment from a gradual but steady decline.[24]


[1] S 20 of the Constitution of Nigeria 1999 requires the government of Nigeria to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria and s 33 (1) which guarantees the right to life of every citizen of Nigeria.

[2] See s 6 (6) c of the Constitution of Nigeria 1999 which essentially prevents any enquiry into any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution (under which a protected environment is provided for in the Constitution).

[3] Articles 4 which provides for the right to life and 24 which provides the right to a general satisfactory environment.

[4]  Such as standing and loopholes in the law. See Oronto Douglas v Shell Petroleum Development Company Limited & Ors (1998) LPELR-CA/L/143/97 Law Pavilion Electronic Law Report- Court of Appeal. Some of the oil pollution related cases arising from some Ogoni communities fall into this category.

[5] EO Popoola, ‘Moving the Battlefields: Foreign Jurisdictions and Environmental Justice in Nigeria’ <https://items.ssrc.org/…environments/moving-the-battlefields-foreign-jurisd…> accessed 19 August 2019.

[6] It has been argued that other victims of environmental harm exist and have been left behind by policy and law-making thereby rendering them invisible and silenced in the search for justice. See M Hall, Environmental Harm: The Missing Victims?, vol 90 (Centre for Crime and Justice Studies 2012) 1.

[7] D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28(1) Stanford Journal of International law 103, 117.

[8] Examples are New Zealand’s Whanganui River was granted rights of personhood in 2017, India’s Ganges River, Article 71 of the 2008 Constitution of Ecuador, essentially provides that nature has the right to integral respect for its existence and the maintenance and regenerations of its life’s cycle’s structure, functions and evolutionary processes. Examples of jurisdictions that have also recognised the legal rights of nature include Bolivia (Law of the Rights of Mother Earth and the Framework Law of Mother Earth and Integral Development for Living Well 2012); Columbia (A 2018 Supreme Court decision held the Columbian Amazon to be a subject of rights based on the Columbian Constitutional’s Courts ruling that Atrato River had legal rights to be protected, conserved and restored); India (The 2018 Uttarakhand High Court decision declaring the animal kingdom to legal entities with rights, duties and liabilities of a living person); and the United States of America where Tamaqua Borough in Pennsylvania recognised the rights of natural communities and ecosystems in a 2006 ordinance) see G Chapron, Y Epstein and JV Lopez-Bao, ‘A Rights Revolution for Nature’ (2019) 363(6434) Science 1392, 1393

[9] CD Stone, Should Trees Have Standing? Law, Morality, and the Environment (Oxford University Press 2010) 264.

[10] ibid 3.

[11] J Kestler-D’Amours, ‘This River in Canada is now a ‘Legal Person’’ (2021) <https://www.aljazeera.com/news/2021/4/3/this-river-in-canada-now-legal-person> accessed 12 April 2021.

[12] As in the Indian cases of Maharaj Singh v Indian Oil Corporation (1999) A. I. R. 81; M. I. Builders v. Radhey Shyam Sahu M.C. [1999] A.I.R.  SC 2468; Mehta v Kamal Nath (1997) 1 S.C.C. 388.

[13] Constitution of the Republic of Ecuador 2008 Chapter 7, Articles 71, 72 and 73; Te Urewera Act 2014 of New Zealand; Constitution of Brazil 1993.

[14] Popoola (n 5).

[15] OI Imasuen, JN Oshodi, TUS Onyeobi, ‘Protected areas for environmental sustainability in Nigeria’ (2013) 17 (1) Journal of Applied Science and Environmental Management 53, 56.

[16] AP Onyena and K Sam, ‘A Review of the Threat of Oil Exploitation to Mangrove Ecosystem: Insights from Niger Delta, Nigeria (2020) 22 Global Ecology and Conservation 1, 3.

[17] S Borràs, ‘New Transitions from Human Rights to the Environment to the Rights of Nature.’ (2016) 5(1) Transnational Environmental Law 113, 143.

[18] CR Giraldo, ‘Does Nature Have Rights? Successes and Challenges in Implementing the Rights of Nature in Ecuador’ (2013) <https://constitutionnet.org/news/does-nature-have-rights-successes-and-challenges-implementing-rights-nature-ecuador> accessed 4 December 2020.

[19] Ibid.

[20] Ibid.

[21] OA Houck, ‘Noah’s Second Voyage: The Rights of Nature as Law’ (2017) 31(1) Tulane Environmental Law Journal 1, 29.

[22] C McDonough, ‘Will the River Ever Get a Chance to Speak? Standing Up for the Legal Rights of Nature’ (2020) 31(1) Villanova Environmental Law Journal 143, 161.

[23] Borràs (n 17) 143.

[24] DR Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (ECW Press 2017) 280.

Research into court reporting in criminal courts: Evidence submitted by UWE Bristol academics

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Written by Tom Smith and Marcus Keppel-Palmer.

In October 2019, the House of Commons Justice Committee published the report of its inquiry into Court and Tribunal reforms (see the full report here). The inquiry was prompted by “[s]erious concerns… about the effect on access to justice and its efficient despatch of the current court and tribunal modernisation programme, led by the Ministry of Justice and the senior judiciary of England and Wales” (p.3). As part of the inquiry, Tom Smith (UWE Law), Marcus Keppel-Palmer (UWE Law), Sally Reardon ( UWE Journalism) and Phil Chamberlain (Journalism, University of Bath), submitted evidence on their research into court reporting in criminal courts:

“In January 2018, we held a project at Bristol Magistrates Court, attending every case held in open court during one week. During this period of time, only one case was attended by a reporter from local media. We fear that important work shining a light on the work of the Courts will continue to diminish.

During the project, a number of cases were conducted using video link. The positioning of the video screens in court meant that it was often difficult and, in some instances, impossible to follow the evidence being presented. Actually being present in court, researchers were able to clarify details with the CPS, something that will not be possible if the hearing is online.”

They argued that:

“Open Justice is held up to be one of the great values of our legal system. At a time when economics dictate that many local media outlets are closing or cutting back on staff, it would be detrimental to that principle if the Courts Service enacted changes to hearings that impacted further on the ease of reporting the courts.”

The Committee’s report recognised this problem, and quoted the UWE team’s evidence as follows:

“The University of the West of England expressed concerns that the reform proposals would create further barriers preventing the reporting of the courts by the local media. They noted that: “[t]he number of dedicated Court Reporters on local newspapers is shrinking, and given the distances reporters would have to go to listen in on an online hearing at a booth at Court [this] can impose a further deterrent.” (p.54)

As mentioned above, the submitted evidence was based on an empirical study examining levels of court reporting, which was published by peer-reviewed journal, Journalism, in August 2019; and has attracted the attention of the Ministry of Justice, Department of Digital, Culture, Media and Sport, and journalism trade publication the Press Gazette.

The UWE Bristol team are currently undertaking a national survey of court reporting during one month in 2019 and preparing to bid for funding to expand the empirical study, underpinned by the concept of ‘Justice Reporting’ – the idea that reporting on courts should go beyond merely relaying facts and case details, but should examine the processes and issues that form part of criminal cases.

The team has also presented its findings at the SLSA 2018 Conference, the What’s The News Conference 2018 in Brussels, the MECCSA 2019 Conference in Stirling, and the Future of Journalism 2019 Conference in Cardiff, as well as presenting the research to visiting Chinese Judges.

Take advantage of degree apprenticeship SME funding with UWE Bristol

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15 May 2019 15:00 – 17:00

Register here

Are you interested in upskilling your workforce and does the cost of training seem a barrier to accessing local talent?

This event provides an opportunity to hear first-hand accounts from existing businesses who have apprentices at UWE, and how to make it work. In addition to this, we will be highlighting upcoming degree apprenticeships and further opportunities for your business to train your employees at degree level with the funding available.

UWE Bristol is the only university in the region with funding from the Education and Skills Funding Agency (ESFA) to support non-levy employers and has secured funding to support apprentices from Small and Medium-sized Enterprises (SMEs).

David Barrett, Director of Apprenticeships at UWE Bristol, will welcome you to the event and alongside the Degree Apprenticeship Hub team will be able to help identify your training needs and suitable solutions.

Spaces are limited for this event, so please register below.

If you have any questions about this event or degree apprenticeships please feel free to contact Ellen Parkes.

We are looking forward to meeting you and beginning the degree apprenticeship partnership journey.

The event takes place in the University Enterprise Zone on Frenchay Campus from 15:00 – 17:00.

Register here

Visiting scholar from the University of the Western Cape in South Africa shares his reflections after visiting UWE Bristol

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In December 2018, visiting scholar  Dr Windell Nortje from the University of the Western Cape in South Africa spent two weeks at the Bristol Law School. Below he shares his reflections of the visit: 

Guest blog by Dr Windell Nortje

I visited UWE between 4 and 18 December 2018. My home institution, the University of the Western Cape (UWC), in Cape Town, South Africa, granted me funding for a two-week international visit at a university abroad. I am truly grateful for the UWC Deputy Vice-Chancellor’s Research and Innovation Office for giving me the opportunity to visit UWE.

In October 2017 I started collaborating with Dr Noëlle Quénivet with a view to writing a journal article. This project turned into a book (Child Soldiers and the Defence of Duress in International Criminal Law) that has been accepted for publication by Palgrave. The manuscript is due to be submitted in March 2019. I approached Dr Quénivet in October 2018 and enquired whether UWE would be willing to host me as a visiting scholar. UWE graciously agreed. In my time at UWE I felt part of the Bristol Law School. I was warmly welcomed by Dr Quénivet, Dr Sarah Grabham, the Head of the Department of Law as well as all the academics and students.

This made my experience at UWE very fulfilling and rewarding.

The initial aim of the two-week visit was to work on the book and to collaborate with some of the academics at UWE. As it turned out, I held two guest lectures and presented my research to UWE academics. In addition, I collaborated with a number of academics with the view to writing journal articles, attended the first annual Criminal Justice Research Unit (CJRU) Lecture and importantly, also discussed the possibility of establishing a new LLM Programme between UWC and UWE. Finally, I also drafted a funding application with Dr Noëlle Quénivet for a potential writing workshop to be held in Cape Town in July 2019. I will be sharing some of the highlights of the activities above.

We are in the final stages of writing the book. Most of the chapters are completed. We are still finalising the conclusions and recommendations. Dr Quénivet had a few new books on child soldiers which I had not yet read and so I was able to incorporate some of the views of these authors in our book. Dr Quénivet and I also discussed the footnoting and referencing of the book as well as a follow-up article to be published in 2020. Dr Quénivet, being a leading expert in the field of international law, has been influential in turning the article into a book. I am grateful for her continuous support and guidance throughout the project. I would also like to thank Ms Shilan Shah-Davis and Dr Suwita Hani Randhawa for their invaluable comments when I discussed the book with them.

In a first for me, Dr Quénivet and I had the opportunity to present a public lunchtime lecture at the Bristol Central Library. This was a unique experience as we presented the lecture in the reception area of the Library and anyone was welcome to attend. The lecture entitled: “Child soldiers: Busting The Myth of their Victimhood to Better Understand who they are”, centred around the myth that child soldiers are victims only and that they should not be held accountable for their crimes. The audience found it fascinating to note that so many girls are also child soldiers since the perception is that the iconic child soldier is that of a boy. However, in some conflicts, the girls outnumber the boys. The audience, who consisted of about 20 people, had an opportunity to ask questions. I was grateful for this opportunity to discuss our work with the public as this is not an opportunity that comes by too often.

At UWE, I was invited by Mrs Evadne Grant to present a guest lecture on the International Law and Institutions module offered on the LLM progamme. The lecture, entitled: “The Fragmentation of International Law: An African Perspective” focused on the fragmentation of international law and how this has resulted in a conflict between African States and the International Criminal Court (ICC). There is no homogenous system of international law as different regulations are applied in different situations, thus a fragmented system. To explain this to the students I used the example of the concept head of state immunity within the context of Africa. The incumbent President of Sudan, Omar Al-Bashir, is wanted by the ICC for the commission of war crimes and genocide. He attended the African Union Summit in South Africa in 2015. During the Summit a South African Court issued an arrest warrant for his arrest. However, he was able to return safely to Sudan and is still wanted by the ICC. As a result, the ICC ruled that South Africa had a duty under the ICC Statute to arrest Al-Bashir. This was affirmed by the Supreme Court of Appeal in South Africa. In the case of head of state immunity, there are various regulations that could be applied in this case hence alluding to the fragmentation of international law. After presenting the lecture, the students had an opportunity to discuss several question posed to them by Mrs Grant. This included whether fragmentation should be regarded as a positive or negative aspect of international law. The students provided constructive feedback on the questions. In South Africa we are not used to this style of interactive lectures, even at LLM level. This was a refreshing experience for me and something that I will be considering at my institution as well.

I was also given the opportunity to present my research at the final Criminal Justice Research Unit/International Law and Human Rights Unit end of semester talk. My research article entitled “The Protection of the Identities of Minors upon Reaching the Age of Majority: Centre for Child Law and Others v Media 24 Limited and Others (871/2017) [2018] ZASCA 140 (28 September 2018)” dealt with the Supreme Court of Appeal’s judgment concerning the ongoing protection of the identities of minors involved in criminal proceedings. The identity of child witnesses, victims and perpetrators when they reach the age of 18 is not protected and it is argued that this could have a damaging effect on the development of the child, depending on whether the case receives wide publicity or not. I received valuable feedback from Dr Tom Smith and Mr Ed Johnston.

I was invited by Dr Smith and Mr Johnston to attend the first annual CJRU lecture which dealt with the disclosure of evidence by the police in the Liam Allan case. It was a fascinating experience for me as this was the first time for myself, and many others, where we could hear the experiences of a former accused, his defence lawyer and the state prosecutor all in one lecture. It was clear from the speakers that the current situation in the UK needs proper reform, and hopefully initiatives such as those of the CJRU will encourage policy change. This event also inspired me to ask questions about the South African law regarding the disclosure of evidence and what lessons could be learned from the UK criminal justice system.

Regarding collaboration, Mrs Grant and I talked about the idea of creating a joint LLM between UWC and UWE in the future. We exchanged ideas and will be looking at funding opportunities to launch a new LLM between our institutions.

Lastly, Dr Quénivet and I embarked on a funding proposal to be submitted to the British Academy which would enable us to hold a writing workshop in Cape Town in July 2019. This workshop will potentially bring together leading international journal editors, UK based scholars and young and emerging African PhD students/scholars and give the emerging PhD students/scholars the opportunity to present an article to the specialist panel and receive constructive feedback on how to publish in international journals. The workshop aims not only to remedy the lack of quality publications by African scholars but also to support them more generally in their career.

In sum, my visit at UWE was an unforgettable experience which has left a lasting impact on my own emerging research profile and my development as a scholar in the field of international criminal law. I hope to see you again in the future!

 

The disclosure crisis: A suspect and practitioner perspective

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On Wednesday 5 December 2018 UWE Bristol hosted the first annual Criminal Justice Research Unit lecture on the topic “The disclosure crisis: A suspect and practitioner perspective.” The event was organised and chaired by Dr Tom Smithand Dr Ed Johnston and funded by the Centre for Applied Legal Research.

Roughly a year ago today our first speaker Liam saw accusations of rape dismissed after the police failed to disclose crucial evidence which fundamentally undermined the claims made against him. Liam gave us a very a personal account of his experiences with the criminal justice system. Jerry Hayes and Anthony Edwards each provided varied and valuable professional perspectives on the problem of disclosure. We hope that this lecture will help to promote meaningful and long term change in this area as well as furthering our goal here at UWE Bristol of research that shapes the future of organisations.

The lecture has been recorded and is available to watch online as a video, or to listen to as a podcast:

View Full video

Listen to Podcast

Liam Allan

Liam Allan is a criminology and criminal psychology graduate who was charged with rape in 2015 and spent two years on bail before his case collapsed owing to failures with the disclosure regime. Liam gave us a very personal insight into his experience and the trauma of accusation, from the moment he was arrested until the case was dropped. Liam described being made to feel that he was “guilty until proven innocent”. Liam arrived at the Crown Court charged with 13 counts of rape; days into his trial, it emerged that the police had 60,000 non-disclosed text messages containing vital information which led to the collapse of the case against him. Following these events, there was huge media interest and public outcry. Subsequently, 600 cases were dropped, 6 of which were rape cases. Since that time, Liam has continued his studies and founded the Innovation of Justice campaign, which seeks to unite organisations, lawyers and barristers, individually seeking to improve different aspects of the criminal justice system.

Jerry Hayes

Jerry was the prosecution barrister for Liam’s trial, and played a fundamental role in the discovery of the non-disclosed evidence. Jerry described some of the fundamental issues with the criminal justice system, in particular in relation to sexual offences. He argued that many members of a jury jump to conclusions in a “no smoke without fire” reaction to rape cases (something Liam suggested he had previously done, prior to his accusation). Jerry emphasised the importance of remembering that people are complainants, not victims, until a conviction or a plea of guilty. Jerry described in detail how and why the system very nearly failed Liam Allan – who would have served up to 12 years in prison and been on the Sexual Offenders Register for life. He suggested that the evidence that was withheld had been deemed “too personal” to be revealed and not relevant to the case. Yet, he argued, it was not only capable of undermining the prosecution case; it made it absolutely clear that Liam Allan could not be guilty. Jerry described Liam’s case as the worst he had seen in 41 years of practice.

Anthony Edwards

Anthony Edwards has been a practising solicitor for 45 years and gave us a professional overview of how disclosure should be handled to avoid major miscarriages of justice. Anthony explained some of the provisions of the Criminal Procedure and Investigations Act (CPIA) and gave an overview of the recent Attorney General’s review of disclosure. He argued that, with sexual offences, there is added complexity and difficulty due to frequent “credibility contest” in such cases – that is, they turn on one person’s word against another. He stated that it is a routine part of defence practice to deal with non-disclosure issues; from major fraud to cases of minor assault. He suggested that poor disclosure practice undermines the criminal justice system, as police and prosecutors do not look for what is actually needed in a case. Anthony highlighted that this issue will not just go away (and not done so for decades), arguing for an enormous cultural shift from the police, the prosecution and defence, to ensure that all evidence is properly disclosed from the start. Anthony highlighted the need for an independent disclosure review process, conducted by an independent barrister, arguing that history tells us that the police nor the prosecution can or will do a satisfactory job. Anthony highlighted the related issues associated with the use of social media by parties in a case; particularly the problems of detecting and accessing such material when it stored on a third party’s account. He asked: how an accused can find such material if they do not know it exists? Anthony suggested that, with an independent disclosure counsel running the process, a significant proportion of cases that currently reach court and are subsequently dropped or dismissed by a jury would be filtered out of the system at an early stage, avoiding injustice.

Question and Answer session

We had a range of questions, some sent in advance and then opened up questions from the audience. Liam talked about how the case affected his personal life and that he was suspended from his job for 2 months. The emotional strain of the case understandably caused Liam to breakdown in court, but he also spoke about the impact on his family and friends. There was much discussion around the CPS and CPIA, whether they were fit for purpose and whether Liam was judged fairly. Anthony and Jerry gave an insightful discussion of the failings of the criminal justice system and how these failings impact genuine victims of sexual abuse. The idea of anonymity for those accused of certain types of offences was discussed by all three speakers, and the idea that it should be anonymous until a judge, because there may be other offences, directs that it should be made publicly known. There was criticism of the CPS and police using their lack of resources as an excuse for their failings, and whether this is a valid excuse or reason, nonetheless it needs to be addressed.

The entire lecture is available online here:

Full video

Podcast

Professor Anthony Arnull’s Distinguished Professorial Address – UWE, 24 October 2017

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‘Should we trust the EU?’ was the controversial title of Professor Anthony Arnull’s Distinguished Professorial Address held on 24 October 2018 at the Bristol Law School, UWE. Prof Arnull who holds the Chair of European Union Law at the University of Birmingham and is the author and editor of a wide range of well-known scholarly works in the field (eg The European Union and its Court of Justice (OUP, 2nd ed, 2006), European Union Law: A Very Short Introduction (OUP, 2017), The Oxford Handbook of European Union Law (OUP, 2015)) started his Address by asking the question ‘What does trust have to do with the EU?’. He pointed out that the concept of trust is increasingly invoked by the CJEU in its jurisprudence. The view of the CJEU is that because Member States share the same values they should trust each other to respect them and thus cannot insist on evidence to show that they are being complied with.

Prof Arnull’s first task was to define the notion of ‘trust’. First, he noted that in an article published in 2004 Lenaerts identified a number of principles that should enhance the trust of individuals in the EU: transparency, equality of arms, legal certainty and predictability, and sound administration. (‘In the Union We Trust’: Trust-Enhancing Principles of Community Law’ (2004) 41 CMLRev 317-343). Writing on the same issue in 2017 Lenaerts explained that the CJEU was expecting the constitutional courts of all Member States to monitor the lower courts. (‘La vie après l’avis: Exploring the Principle of Mutual (yet not Blind) Trust’ (2017) 54 CMLRev 805-840).

Looking at the concept in a more general way Prof Arnull explained that Baier understands trust as ‘reliance on others’ competence and willingness to look after, rather than harm, things one cares about which are entrusted to their care’ but that it might be possible to add another dimension to trust, that of risk, a notion introduced by Niklas Luhmann in his extensive writings on the subject. In this context, both parties expect things to go smoothly for the benefit of both (eg hiring a babysitter). So, the question boils down to asking how can someone draw the conclusion that another person is trustworthy? After all, it is about good judgment and usually one relies on evidence to establish such trustworthiness. In other words, the question is: ‘does the person have a good track record?’ Sometimes as it is not easy to gather evidence one needs to use proxy indicators. This is particularly the case in decentralised systems when it is often difficult to find whether trust is met. Trust can indeed be misplaced and so there might be a lack of trust.

Going back to the European Union Prof Arnull asked whether it is rational to trust the EU. He observed that a high degree of trust had been displayed by the European States between the 1950 Schuman declaration and the 1957 Treaty of Rome that established the European Economic Community. Yet, the States also seemed not to trust each other, considering the possibility that a State might not live up to its treaty commitments. The Commission was tasked with ensuring that the treaty be applied, and an enforcement procedure was established under Article 169. Prof Arnull also went back to the enforcement procedure under the European Coal and Steel Community to prove his point. After all, the idea of policing States tends to show a lack of trust. Such an argument is supported by the introduction in the Treaty of Maastricht of the possibility for the Commission to start a second set of proceedings against States with a view to obliging them to pay financial penalties if they did not comply with the initial CJEU judgment. The Lisbon Treaty went a step further allowing the Commission to ask for financial penalties to be applied without having to seise the CJEU again, though that is only allowed in limited circumstances (Article 260(3) TFEU). Prof Arnull argued that there is trust in the Commission to enforce EU law but it was much higher in the past, especially under the European Coal and Steel Community. The Amsterdam Treaty also introduced in Article 7 TEU the possibility to check on States failing to comply with the key values of the European Union. Now such a procedure is being used against Poland and Hungary.

Prof Arnull then provided a myriad of examples of trust and lack thereof towards both Member States and the institutions of the European Union. As he pointed out in the Q&A session the permutation of trust relations in the EU does not permit a structured analysis of how trust works in the EU. He also explained that mutual trust is the basis of EU law as well as an assumption. That being said, if there is a lack of trust it does not mean that there will be no trust anymore; rather, it means that trust must be re-established at a later stage.

The application of the European Arrest Warrant is an example of the trust or lack thereof between EU Member States as the recent preliminary reference to the CJEU on a case brought by an Irish court shows (Case C-216/18 PPU). Indeed, the Irish court questioned whether the right to fair trial would be guaranteed should Ireland extradite the individual to Poland.

With regard to individuals and how much they can trust the EU, Prof Arnull highlighted that originally, under the ECSC treaty, legal and natural persons had a relatively easy access to judicial review but the Treaty of Rome severely curtailed that right. The reason for this was that such judicial review was viewed as detrimental to the good functioning of the then European Economic Community.

To ensure though that individuals benefitted from EU law, the Court established the principles of direct effect and supremacy. If it had thought the Member States could be trusted to comply with EU law it would have probably not created these principles. The CJEU also works on the basis of trust in the sense that it assumes that the highest national courts comply with EU law as well as monitor lower courts. Unfortunately, this was recently put to the test as the Danish Supreme Court refused to follow a preliminary reference in 2016 (Ajos Case). So, if a constitutional court does not comply with EU law such monitoring disappears or, at least, becomes more difficult. Some academics claim that the Danish court’s reaction was because it views the CJEU as too activist and this does not work well with the Danish legal culture. The question however is why such an issue is raised after Denmark has been for so many years in the European Union.

The European Commission is viewed as one of the most powerful institutions and so trust in it is paramount. Unfortunately, a number of events have permitted us to doubt the trust we put in it. For example, in 1999 the Santer Commission resigned. In 2006 Edith Cresson, a Commissioner, was found guilty of misconduct (Case C-432/04). More recently in 2018 the Ombudsman has had to deal with two cases of maladministration against the Commission, the first one relating to Barroso, the former President of the EU Commission taking up a job as advisor with Goldmans Sachs and, the second one relating to the appointment of Selmayr as Secretary-General. It should however be noted that in the latter case the Ombudsman did not attack the individual, rather it was the process that led to his appointment that was put in question. This all does not look good when the Commission is, according to the treaties, the guardian of the treaties and yet seems to contain a number of individuals who cannot be trusted.

The history of the European Monetary Union (EMU) is another point in case. Italy wanted to play a strong role in the EU and thus had to show that it fulfilled the convergence requirements to be part of the EMU. The criteria were flexibly interpreted in 1998 and so Italy became part of it. Later, Italy and Greece became the victims of the 2008 financial crisis. This led to asking the question why Greece had been accepted in the Eurozone in the first place. The criteria, so it seemed, did not appear to have been rightly applied or, possibly, there was a deliberate attempt by Greece to mislead other EU Member States. In any case the issue of trust was raised in this context. The problem was that the Council is the only body that can oblige a State to correct the deficit within a certain timeframe. Yet, the Council, notably due to its composition is unwilling to do so. As a result we end up in a situation whereby commitments are made but not upheld and then the breach is not rectified because of collusion between Member States. All this reveals that the actors at stake cannot be deemed trustworthy, at least in the field of monetary policies.

Another good illustration of the issue of trust in the EU is the enlargement process. At the Copenhagen European Council it was agreed that Cyprus could become a Member of the EU and that accession by a united Cyprus was encouraged. Consequently, the process launched by Kofi Annan, then Secretary-General of the United Nations, was supported by the EU. Yet, the EU did not attach any conditionality and so, despite the rejection by the Greek Cypriots of the unification of the island in a referendum organised by the United Nations, the EU allowed Cyprus to join the EU but on the understanding that the acquis was suspended in the northern part.

In conclusion, Prof Arnull explained that first the EU treaties have express provisions showing the lack of trust in the Member States. Second, practice also reveals that at times neither the Member States nor the EU institutions can be trusted. In other words, there are many reasons for not trusting the EU and the Member States. Does that mean that there is a crisis? No, according to Prof Arnull. Rather, all institutions must show that they are trustworthy and this can be done by setting practical guidelines and examples of good governance.

Bristol Law School’s Thomson Reuters Legal Student Representative awarded First Place Award at the annual Thomson Reuters Conference

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2nd year Law student Anita Dangova has been named First place at the annual Thomson Reuters Conference for the work she has achieved this year as a Thomson Reuters Legal Student Representative (TRLSR).

As a TRLSR, Anita organises different Westlaw workshops and sessions to help her fellow students achieve the best results possible.

As part of her role, Anita has worked closely with the Bristol Law School librarians to produce customised workshops and sessions for our students currently involved in the African Prisons Project (APP).

The APP offers high quality, accessible legal services to the most marginalised communities in East Africa through their training and leadership programme.

They operate in partnership with those who live and work within the justice system – from prisoners, to prisons staff and the judiciary – to those in government and other agencies, with individuals and organisations, towards a common goal, ensuring that everyone has access to justice.

Anita and the School Librarians have helped the APP Research Associates conduct their research effectively, using Westlaw. The research can be exported and shared with the group leaders from the APP which may be the first steps towards an African prisoner’s freedom.

Congratulations to Anita for the award and congratulations to both Anita and the Law School Librarians for a great collaboration!

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