IES Research Projects

Enforcing international and human rights commitments as the main tool to improve the application of environmental responsibilities in the EU?

When approaching, adopting and implementing EU environmental law the tensions that arise can be seen as layers. Some layers reflect the EU’s own institutional framework and legal order, others layers are inherent to the regulated field, the environment.

A first layer could be (quite reductively) be labelled the political one. The tension between different priorities is reflected in some approaches to law. E.g. the “law and economics approach” clearly determines the outcome of this conflict by applying economic principles to legal concepts (such as subsidiarity). In focusing on the field of economics and law, theories range from “economic pessimism” (i.e. economic growth and environmental sustainability are, ultimately, incompatible) to “ecological modernization” (i.e. economic activities and growth are perceived as a way forward to a brighter future in which environmental standards rise).

A second layer could be the different level of environmental protection between Member States. The tensions and dynamic of EU environmental law would be steered by Member States. Some authors found features of such a layer in the various EU enlargements.

A third layer would be the EU regulatory approaches and legal basis.
As for the identification of the legal basis some authors wonder whether there is a ‘two-speed environmental Europe’ composed of the ‘Standard’ provisions adopted under Article 175 ECT and the provisions for Member States to maintain or introduce more stringent measures, under Article 176 ECT.

As for the identification of the form of the regulations, tension arises between different techniques of law: from “direct” or “command-and-control” regulation (standards for polluting or damaging activities and enforcement of those standards by environmental regulators) to “self-regulation” (“voluntary” regulation in the sense that it occurs “either under the ‘shadow’ of possible administrative or economic regulation, that is under the threat of the state adopting such regulation or as a result of institutional or organizational set by the state”), or economic instruments (e.g. charges, taxes, subsidies, transferable permit systems).

Starting from the tensions crossing EU environmental law and more particularly EU environmental liability law, this PhD will try to determine if public international law and human rights law can provide with elements that constitute a part of the pattern to be acknowledged by EU regulatory authorities when dealing with environmental law. In other words, can public international law and human rights law be considered as safety nets?

The thesis to be tested by the PhD is that EU environmental law has several weaknesses. Public international law and Human Rights provide standards that can help EU environmental law to overcome these weaknesses. In this PhD, we will test that theory by focusing on EU environmental liability law.

As a concrete field we will focus on EU environmental liability norms. More particularly, we will deal with the Environmental Liability Directive (ELD) and the proposed directive on the protection of the environment through criminal law.

To answer the central question: can public international law and human rights law be part of the legal pattern that has to be taken into account by EU regulatory bodies when elaborating substantive EU liability norms in the environmental field, we must answer the following questions: to what extent did the EU regulators make substantive legal choices when drafting liability norms? In other words, did the regulators actually opt for given legal constructions and reject others together with their potential for environmental protection? To answer that question, we must first answer the following question: what are the legal “standards”, concepts at stake when dealing with environmental liability?

To answer those questions we will proceed as follows: first, we will develop on the tensions inherent to the environmental field and the EU constraints/possibilities regarding EU environmental law as such. Then, we will focus on the legal concepts at stake when dealing with environmental liability. This will enable us to draw a panorama we will confront in a third stage with the options that could have been taken by EU regulators on the one hand and those actually taken when drafting EU environmental frameworks on the other hand.

Once this will be done, we will then have been able to determine which legal choices have been made, and consequently we will be able to assess which weaknesses can be found in the norms into question.

In a fourth stage, we will look for legal constraints from public international law enabling to solve those weaknesses, constraints that should have been integrated when drafting the norms into question.

In a final stage, we will proceed similarly with human rights law constraints.

Promoter: Paul De Hert & Marc Pallemaerts
Researcher: Armelle Gouritin