Dr. Armelle Gouritin
Armelle is currently Visiting Professor at the Centro de Investigación y Docencia Económicas, A.C. (December 2013-December 2014, Mexico, Aguascalientes- http://www.cide.edu.mx/) and Maitre de Conférences at the Université libre de Bruxelles where she lectures on environmental law.
She joined the IES in 2007. Initially trained as a lawyer, she holds a maîtrise in public and european law (Université Paris I Panthéon-Sorbonne), a master in public international law (Université Libre de Bruxelles), a specialization in international environmental law (Université Libre de Bruxelles), and a master in Human Rights (Université Saint Louis - Brussels).
She is a fellow for the One Justice Research Project (www.onejusticeproject.org) and member of the Executive Board of Ecosphere (ecosphere.be).
She publicly defended her Ph.D dissertation on 15 October 2012.
Can International Environmental Law and Human Rights Law Fill the Gaps of EU Environmental Law? The Case of Environmental Responsibility.
Keywords: environmental damage, environmental harm, ecological values, human rights, protection obligation.
Executive summary of the Ph.D. dissertation
The dissertation aims at answering the question of whether international environmental law and Council of Europe human rights law (European Convention on Human Rights as interpreted by the European Court of Human Rights) fill gaps identified in Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage and Directive 2008/99 on the protection of the environment through criminal law. The research is exclusively concerned with private persons’ environmental responsibility. The answer to the question is “to a very limited extent".
The first part of the dissertation is built upon the premise that tensions initially occurred when the EU legislator adopted the Directives. The hypothesis that tensions resulted in some gaps in EU environmental responsibility texts is explored and verified. Three aspects are researched: first, environmental damage and harm; second, grounds for responsibility; and third, grounds for exceptions to the responsibility principle.
The first part is devoted to the critical appraisal of Directive 2004/35 and Directive 2008/99. The critical assessment of the legal constructs enshrined in the Directives enables us to identify a whole series of gaps. Three main lines of analysis reveal and explain the gaps. Firstly, how law approaches the environment. Environmental features are not protected and endorsed in the responsibility text for their instrumental or inherent value. Secondly, the impact of the regulatory approach on EU environmental responsibility law, i.e. the consequences of the dependence of EU environmental responsibility law upon EU environmental law. Responsibility or exceptions to the responsibility principle are based upon EU existing regulation of human activities. The greatest weight of significance does not rest upon environmental damage and harm and the corresponding harmlessness obligations are phrased under due diligence or obligation of results. Thirdly, the shift from responsibility (breach of an obligation and of victims’ rights) to cost-allocation. As a consequence of the regulatory approach, which is not centred on the notions of environmental damage and injury, the Directives address cost-allocation matters instead of identifying due diligence or harmlessness obligations towards the environment. The gaps that best reflect these three lines of analysis are studied in the second part of the study. These are the limited notion of natural resources, the exclusion of diffuse pollution from the scope of application of the Directives, deference to international law when international law norms regulate private persons’ responsibility -despite these norms being severely criticised, reliance upon public authorities and environmental NGOs in order to set responsibility procedures in motion, and the development risk defence as an exception to the responsibility principle.
The second part of the dissertation is devoted to the “gap filling” exercise, conducted through the analysis of international environmental law and Council of Europe Human Rights Law. The substantive norms of Council of Europe human rights law and international environmental responsibility law are tested in order to fill the gaps found in EU environmental responsibility texts. The second hypothesis, that international environmental law and Council of Europe human rights law can fill the gaps identified in the Directives, is partially verified: the formers are gap-fillers to a limited extent.
From the outset, the limits of the approach adopted in order to fill the Directives’ gaps are acknowledged. On the one hand, only a small few international environmental law norms are mobilised. The reason is that few norms addressing environmental responsibility of private persons have actually entered into force. On the other hand, the limits of Council of Europe human rights law in relation to the purpose of filling the Directives’ gaps cannot be ignored. Indeed, Council of Europe human rights law does not guarantee the right to a healthy environment. This law remains largely anthropocentric and individualistic. The gap-filling exercise nevertheless delivered some outcomes. Analysis of the UN Convention on Biodiversity and subsequent Biosafety Protocols reveal that the Directives’ notion of natural resources does not fit with the formers’ notion of biodiversity. Also, Directive 2004/35 should not defer to the international framework that applies to oil spills, since this framework is believed to infringe the requirements of Council of Europe human rights law with regard to right to property. Also, the Council of Europe frames the application of the environmental responsibility mechanisms put in place by the Directives. Impartiality and independence requirements limit the margin of discretion of public authorities when they set environmental responsibility into motion. Eventually, the scope of application of the development risk defence is challenged against international environmental law and human rights requirements. It is contended that an obligation to monitor and research risk is a prerequisite which must be respected in order to respect the precautionary principle’s scope of application. This obligation in turn limits the scope of application of the defence. Also, a breach of the obligation would amount to fault, had the operator not fulfilled the monitoring and research obligation. Being at fault, the operator would no longer be in the position to invoke the defence and would be found responsible for damage and harm.
The thesis, that the gap-filling exercise can support a return to the responsibility paradigm which is opposed to the cost-allocation paradigm endorsed in the Directives, is not verified: the comparative approach does not support a return to the responsibility paradigm or the autonomy of environmental responsibility law from environmental law.
All in all, the results of the gap-filling exercise can be viewed as rather limited. The research started with an open question and this limited result was, to some extent, predictable. Nevertheless, this lacklustre performance is not entirely unproductive, and can rather be seen as scientific evidence of the current limits of international environmental law and Council of Europe human rights law. Consequently, were international environmental law and Council of Europe human rights law to fulfil the gap-filling exercise, potential paths for improvement are identified. In addition, the interplay between EU environmental responsibility law, international environmental law and human rights law can be systematised under six cases.
A first set of three cases is identified when focussing on the interplay between EU environmental responsibility law and international environmental law. A second set of three cases is identified when attention is directed to the interplay between EU environmental responsibility law and Council of Europe human rights law. First, EU environmental responsibility law cannot defer to international law. This hypothesis is identified in chapter 8, where particular attention is paid to the international framework that applies to oil-spills. Secondly, EU environmental responsibility law has influenced international environmental law. The infiltration of EU law into international environmental law is demonstrated in chapter 6 where international environmental law that addresses damage and harm to biodiversity is considered. Thirdly, international environmental law supports the identification of inconsistencies between EU environmental law and EU environmental responsibility law. In turn, these inconsistencies conflict with human rights requirements. This is dealt with in chapter 9. In this chapter, the boundaries of the development risk defence endorsed in Directive 2004/35 are questioned.
In the fourth instance, the comparative approach is applied and EU environmental responsibility law is confronted with Council of Europe human rights law. Conflict arises in this case. The deference of EU environmental law to international environmental law is in conflict with human rights requirements, particularly right to property. In the fifth case, Council of Europe human rights law calls for a specific interpretation of supplementary legal tools regarding EU environmental responsibility law. In chapter 9, where the focus rests on the development risk defence endorsed in Directive 2004/35, it is argued that respect for the scope of application of the precautionary principle calls for a research and monitoring obligation. The sixth case identified relates to the practical putting into motion of EU environmental responsibility law. In this hypothesis, no conflict can be identified between the provisions of EU environmental responsibility law and human rights. Human rights law requirements do not call for a specific interpretation of the provisions of the Directives, but rather for specific safeguards to be respected in the practical operation of the provisions. Council of Europe human rights law frames EU environmental responsibility law. In this case, the choice to rely upon public authorities -the main actors in setting the wheels of environmental responsibility in motion- is not challenged as such, but is framed by procedural requirements in terms of independence and impartiality.
Reports for Milieu Ltd
- "Legal framework applicable to racist or xenophobic hate speech and hate crime in the EU Member States", Country report - France (Sept.)
- “Member States policies for children with disabilities (or with different abilities)”, Country report - France (Oct.)
- "Children in criminal proceedings", Country report - Luxembourg (November)
- “EU Environmental Liability Directive (Directive 2004/35) – Conformity check”, Brussels and Wallonia (Nov.)
Expert mission for ClientEarth on the EU accession to the European Convention on Human Rights (consequences for environmental procedural rights) 18 Oct. until 31 Dec.
Survey on environmental criminal law in EU Member States. Report for the European
Commission. Collaboration with the law firm Huglo Lepage, Brussels (Feb.)
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