Pub Date : 2023-11-15DOI: 10.1163/27725650-03020007
Federica Passarini
Individuals and non-governmental organizations’ access to justice in environmental matters may be hindered by a variety of obstacles, such as the fulfillment of legal standing conditions. In this regard, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), on its Article 9(3), imposes on each State Party the obligation to ensure members of the public, “where they meet the criteria, if any, laid down in its national law”, to have access to justice in order to challenge any violation of national environmental law. In this contribution, I focus on this provision with the purpose of assessing its normative content regarding the criteria for legal standing. To this end, I analyze the interpretation of Article 9(3) given by the Aarhus Convention Compliance Committee (accc), as well as the relevant case law of domestic courts and the Court of Justice of the European Union (cjeu).
{"title":"Legal Standing of Individuals and ngo s in Environmental Matters under Article 9(3) of the Aarhus Convention","authors":"Federica Passarini","doi":"10.1163/27725650-03020007","DOIUrl":"https://doi.org/10.1163/27725650-03020007","url":null,"abstract":"Individuals and non-governmental organizations’ access to justice in environmental matters may be hindered by a variety of obstacles, such as the fulfillment of legal standing conditions. In this regard, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), on its Article 9(3), imposes on each State Party the obligation to ensure members of the public, “where they meet the criteria, if any, laid down in its national law”, to have access to justice in order to challenge any violation of national environmental law. In this contribution, I focus on this provision with the purpose of assessing its normative content regarding the criteria for legal standing. To this end, I analyze the interpretation of Article 9(3) given by the Aarhus Convention Compliance Committee (accc), as well as the relevant case law of domestic courts and the Court of Justice of the European Union (cjeu).","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"39 12","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139273583","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-15DOI: 10.1163/27725650-03020003
Claudia Candelmo, Lorenzo Cecchetti, Domenico Pauciulo, Pierfrancesco Rossi
{"title":"The Judicial Protection of the Environment in International and European Law","authors":"Claudia Candelmo, Lorenzo Cecchetti, Domenico Pauciulo, Pierfrancesco Rossi","doi":"10.1163/27725650-03020003","DOIUrl":"https://doi.org/10.1163/27725650-03020003","url":null,"abstract":"","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"91 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139275471","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-15DOI: 10.1163/27725650-03020011
Camilla Burelli
The paper aims at understanding whether financial sanctions pursuant to Article 260(2) tfeu have a deterrent effect in relation to specific types of State breaches, namely environmental ones. Spanning three parts, the paper examines how the different type of infringement affects the effectiveness of the payment of financial sanctions, and how these are not equally effective in relation to all types of breaches. Subsequently, it studies the features and issues of the Italian cases. On the bases on this empirical analysis, the article will try to answer the research question. Finally, proposals for amendments will be drawn up, assessing the feasibility of other forms of sanctions.
{"title":"The Deterrent Effect of Financial Sanctions Pursuant to Article 260(2) tfeu in the Context of Violations of Environmental Obligations","authors":"Camilla Burelli","doi":"10.1163/27725650-03020011","DOIUrl":"https://doi.org/10.1163/27725650-03020011","url":null,"abstract":"The paper aims at understanding whether financial sanctions pursuant to Article 260(2) tfeu have a deterrent effect in relation to specific types of State breaches, namely environmental ones. Spanning three parts, the paper examines how the different type of infringement affects the effectiveness of the payment of financial sanctions, and how these are not equally effective in relation to all types of breaches. Subsequently, it studies the features and issues of the Italian cases. On the bases on this empirical analysis, the article will try to answer the research question. Finally, proposals for amendments will be drawn up, assessing the feasibility of other forms of sanctions.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139270944","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-15DOI: 10.1163/27725650-03020010
Francesca Sironi De Gregorio
The purpose of the work is to systematize the discipline of the proof of environmental harm in inter-State litigation, examining, in light of the practice of international courts and tribunals, the following five aspects: (i) definition of the actionable ‘environmental damage’; (ii) burden of proof and presentation of evidence; (iii) means and methods of proof; (iv) standard of proof; and (v) evaluation of the damage. The analysis takes into account the most relevant case law and doctrinal studies in the field, reconstructing a general framework, whilst taking into account specificities that might derive from specific applicable regimes. The main aim of the work is to assess whether the challenges in proving environmental harm are fostering – or have already led to – the creation of a different set of applicable rules on evidence.
{"title":"Proving Environmental Harm in Inter-State Litigation: Challenges and Evolving Strategies","authors":"Francesca Sironi De Gregorio","doi":"10.1163/27725650-03020010","DOIUrl":"https://doi.org/10.1163/27725650-03020010","url":null,"abstract":"The purpose of the work is to systematize the discipline of the proof of environmental harm in inter-State litigation, examining, in light of the practice of international courts and tribunals, the following five aspects: (i) definition of the actionable ‘environmental damage’; (ii) burden of proof and presentation of evidence; (iii) means and methods of proof; (iv) standard of proof; and (v) evaluation of the damage. The analysis takes into account the most relevant case law and doctrinal studies in the field, reconstructing a general framework, whilst taking into account specificities that might derive from specific applicable regimes. The main aim of the work is to assess whether the challenges in proving environmental harm are fostering – or have already led to – the creation of a different set of applicable rules on evidence.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"9 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139273003","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-15DOI: 10.1163/27725650-03020008
Pierre Clément Mingozzi
On 12 December 2022, the International Tribunal for the Law of the Sea (itlos) received a request from the Commission of Small Island States on Climate Change and International Law (cosis) to render an advisory opinion in order to clarify the obligations of States under the 1982 United Nations Convention on the Law of the Sea (unclos) to protect and preserve the marine environment in relation to climate change, including ocean warming, sea level rise, and ocean acidification. Although itlos has dealt with environment-related issues in the past, it has not yet specifically dealt with climate change and its (in)direct impacts. This contribution, drawing on the first opinion delivered by the Tribunal in 2015, aims to scrutinize some critical legal questions that the request will inevitably face, engaging particularly with its main procedural and substantive aspects. Since it is unlikely that itlos will encounter any unsurmountable obstacles to render the opinion, it would be expected that the Tribunal will take this opportunity to shed light on the implications of climate change for the legal regime of the sea, but also on the role of the Tribunal itself, to definitively clarify its advisory function.
{"title":"The Contribution of itlos to Fight Climate Change: Prospects and Challenges of the cosis Request for an Advisory Opinion","authors":"Pierre Clément Mingozzi","doi":"10.1163/27725650-03020008","DOIUrl":"https://doi.org/10.1163/27725650-03020008","url":null,"abstract":"On 12 December 2022, the International Tribunal for the Law of the Sea (itlos) received a request from the Commission of Small Island States on Climate Change and International Law (cosis) to render an advisory opinion in order to clarify the obligations of States under the 1982 United Nations Convention on the Law of the Sea (unclos) to protect and preserve the marine environment in relation to climate change, including ocean warming, sea level rise, and ocean acidification. Although itlos has dealt with environment-related issues in the past, it has not yet specifically dealt with climate change and its (in)direct impacts. This contribution, drawing on the first opinion delivered by the Tribunal in 2015, aims to scrutinize some critical legal questions that the request will inevitably face, engaging particularly with its main procedural and substantive aspects. Since it is unlikely that itlos will encounter any unsurmountable obstacles to render the opinion, it would be expected that the Tribunal will take this opportunity to shed light on the implications of climate change for the legal regime of the sea, but also on the role of the Tribunal itself, to definitively clarify its advisory function.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139273306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-15DOI: 10.1163/27725650-03020018
Alessandro Nascimbeni
The judgment gives the opportunity to focus on the ne bis in idem principle as established at the European Union level. Accordingly, after an analysis of the facts of the case and of the judgment of the Italian Supreme Court, some inquiries on the nature of the principle will pave the way for a critical assessment of the decision’s legal reasoning, notwithstanding the correctness of the final outcome.
{"title":"The Italian Supreme Court and the European ne bis in idem Principle: A Correct Decision Worthy of Some Criticism","authors":"Alessandro Nascimbeni","doi":"10.1163/27725650-03020018","DOIUrl":"https://doi.org/10.1163/27725650-03020018","url":null,"abstract":"The judgment gives the opportunity to focus on the ne bis in idem principle as established at the European Union level. Accordingly, after an analysis of the facts of the case and of the judgment of the Italian Supreme Court, some inquiries on the nature of the principle will pave the way for a critical assessment of the decision’s legal reasoning, notwithstanding the correctness of the final outcome.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"27 6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139274773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-15DOI: 10.1163/27725650-03020017
Giacomo Biagioni
The contribution is focused on a recent decision of the Italian Supreme Court, in which it was held that a Danish judgment imposing a monetary sanction (bod) on an employer for the failure to perform its obligations under a collective employment contract can be recognized in Italy under Regulation (EU) No. 1215/2012 (applicable to Denmark via the 2005 EU-Denmark Agreement). The request to refuse recognition had been raised on the assumption that the Danish measure amounted to a condemnation to punitive damages and was thus incompatible with public policy. The Corte di Cassazione came to the opposite conclusion, but the solution reached may cause a mixed reaction. It is regrettable that, notwithstanding the applicability of Regulation (EU) No. 1215/2012, the Italian Supreme Court simply relied on the principles developed in its previous judgment No. 16601/2017 (concerning a judgment of a non-EU court) and did not deem it necessary to request a preliminary ruling from the European Court of Justice (“cjeu”) on the interpretation of the relevant provisions of the mentioned Regulation. In a different vein, it is to be welcomed that the nature of the foreign measure was assessed in accordance with the so-called Engel criteria, developed by the European Court of Human Rights. However, the analysis conducted in the instant case by the Italian Supreme Court, which appeared to overlook some characteristics of the Danish bod, is not completely convincing.
{"title":"Recognition of a Danish Monetary Penalty in Employment Matters and Public Policy","authors":"Giacomo Biagioni","doi":"10.1163/27725650-03020017","DOIUrl":"https://doi.org/10.1163/27725650-03020017","url":null,"abstract":"The contribution is focused on a recent decision of the Italian Supreme Court, in which it was held that a Danish judgment imposing a monetary sanction (bod) on an employer for the failure to perform its obligations under a collective employment contract can be recognized in Italy under Regulation (EU) No. 1215/2012 (applicable to Denmark via the 2005 EU-Denmark Agreement). The request to refuse recognition had been raised on the assumption that the Danish measure amounted to a condemnation to punitive damages and was thus incompatible with public policy. The Corte di Cassazione came to the opposite conclusion, but the solution reached may cause a mixed reaction. It is regrettable that, notwithstanding the applicability of Regulation (EU) No. 1215/2012, the Italian Supreme Court simply relied on the principles developed in its previous judgment No. 16601/2017 (concerning a judgment of a non-EU court) and did not deem it necessary to request a preliminary ruling from the European Court of Justice (“cjeu”) on the interpretation of the relevant provisions of the mentioned Regulation. In a different vein, it is to be welcomed that the nature of the foreign measure was assessed in accordance with the so-called Engel criteria, developed by the European Court of Human Rights. However, the analysis conducted in the instant case by the Italian Supreme Court, which appeared to overlook some characteristics of the Danish bod, is not completely convincing.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"37 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139275267","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-15DOI: 10.1163/27725650-03020006
Antonio Mariconda
The climate change applications currently pending before the European Court of Human Rights (ECtHR) present substantial challenges to the status quo of the Strasbourg system, encompassing both merits and admissibility issues. Of particular concern is their compliance with the admissibility requirement outlined in Article 34 of the European Convention of Human Rights (echr), which stipulates that applicants must be victims of a violation of the Convention by a State to file a case before the Court. Given the diffuse nature of the harms stemming from climate change, identifying individuals as victims of its effects and, consequently, whose rights are allegedly infringed upon, becomes a complex task. Furthermore, establishing a direct causal link between the harm endured and the actions or omissions of a single State proves to be equally challenging. Therefore, the aim of this article is to scrutinize how this admissibility requirement might operate in the cases at hand. In particular, it argues that, albeit with some caveats, it is legally possible to consider some climate change applicants as both direct and potential victims, as per the definitions established by the case law of the ECtHR. Nevertheless, this solution could pose significant challenges to the legitimacy and efficiency of the Strasbourg system, which the Court will have to prevent when deciding these cases.
{"title":"Victim Status of Individuals in Climate Change Litigation before the ECtHR","authors":"Antonio Mariconda","doi":"10.1163/27725650-03020006","DOIUrl":"https://doi.org/10.1163/27725650-03020006","url":null,"abstract":"The climate change applications currently pending before the European Court of Human Rights (ECtHR) present substantial challenges to the status quo of the Strasbourg system, encompassing both merits and admissibility issues. Of particular concern is their compliance with the admissibility requirement outlined in Article 34 of the European Convention of Human Rights (echr), which stipulates that applicants must be victims of a violation of the Convention by a State to file a case before the Court. Given the diffuse nature of the harms stemming from climate change, identifying individuals as victims of its effects and, consequently, whose rights are allegedly infringed upon, becomes a complex task. Furthermore, establishing a direct causal link between the harm endured and the actions or omissions of a single State proves to be equally challenging. Therefore, the aim of this article is to scrutinize how this admissibility requirement might operate in the cases at hand. In particular, it argues that, albeit with some caveats, it is legally possible to consider some climate change applicants as both direct and potential victims, as per the definitions established by the case law of the ECtHR. Nevertheless, this solution could pose significant challenges to the legitimacy and efficiency of the Strasbourg system, which the Court will have to prevent when deciding these cases.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"45 2","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139270931","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-15DOI: 10.1163/27725650-03020013
Marco Pasqua
Within the framework of private climate litigation, where injured people bring civil claims concerning the liability of companies for the harmful effects of their polluting activities before domestic courts, this contribution investigates the role of authorisations to emit greenhouse gases under Directive 2003/87/ec (Emissions Directive), when they are not specifically part of the lex fori (law of the forum) and lex causae (law applicable to merits). A traditional way to consider greenhouse gas emissions permits in these disputes is via the rules of safety and conduct under the Article 17 of the Regulation (ec) No. 864/2007 (Rome ii). The author of this contribution considers that there may be a different reading of such rules, i.e. the interpretative elaboration of a unilateral conflict rule in the Emissions Directive, which would allow the authorisation issued by a State whose law is different than the lex fori and lex causae ones before the courts of EU Member States to be relied upon. Furthermore the authorisation, in circulating, carries with it the (possible) exempting effect under the civil liability rule of the State issuing the authorisation.
{"title":"Authorisations to Emit Greenhouse Gases – A Conflict-of-Laws Perspective","authors":"Marco Pasqua","doi":"10.1163/27725650-03020013","DOIUrl":"https://doi.org/10.1163/27725650-03020013","url":null,"abstract":"Within the framework of private climate litigation, where injured people bring civil claims concerning the liability of companies for the harmful effects of their polluting activities before domestic courts, this contribution investigates the role of authorisations to emit greenhouse gases under Directive 2003/87/ec (Emissions Directive), when they are not specifically part of the lex fori (law of the forum) and lex causae (law applicable to merits). A traditional way to consider greenhouse gas emissions permits in these disputes is via the rules of safety and conduct under the Article 17 of the Regulation (ec) No. 864/2007 (Rome ii). The author of this contribution considers that there may be a different reading of such rules, i.e. the interpretative elaboration of a unilateral conflict rule in the Emissions Directive, which would allow the authorisation issued by a State whose law is different than the lex fori and lex causae ones before the courts of EU Member States to be relied upon. Furthermore the authorisation, in circulating, carries with it the (possible) exempting effect under the civil liability rule of the State issuing the authorisation.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"64 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139271131","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-11-15DOI: 10.1163/27725650-03020004
J. Viñuales
The role of international adjudication with respect to environmental disputes has been a matter of significant debate, particularly since the late 1980s. Scepticism about the creation of an international environmental court, the lack of use of specialised environmental chambers and the rise of non-compliance procedures largely supported the view that international adjudication had a limited role to play in this context. This conventional view is today being reconsidered. This is due in part to the surge in domestic climate litigation but also, as argued in this brief contribution, to the potential of international adjudication to address the challenges that had once supported arguments against it, namely (1) the ambiguity and indeterminacy of substantive provisions in multilateral environmental treaties; (2) States’ own capacity limitations to discharge their duties under such treaties, and (3) the need for treaty regimes to accommodate changing social, economic, political and, of course, environmental circumstances.
{"title":"Second Thoughts? The International Adjudication of Environmental Disputes 30 Years Later","authors":"J. Viñuales","doi":"10.1163/27725650-03020004","DOIUrl":"https://doi.org/10.1163/27725650-03020004","url":null,"abstract":"The role of international adjudication with respect to environmental disputes has been a matter of significant debate, particularly since the late 1980s. Scepticism about the creation of an international environmental court, the lack of use of specialised environmental chambers and the rise of non-compliance procedures largely supported the view that international adjudication had a limited role to play in this context. This conventional view is today being reconsidered. This is due in part to the surge in domestic climate litigation but also, as argued in this brief contribution, to the potential of international adjudication to address the challenges that had once supported arguments against it, namely (1) the ambiguity and indeterminacy of substantive provisions in multilateral environmental treaties; (2) States’ own capacity limitations to discharge their duties under such treaties, and (3) the need for treaty regimes to accommodate changing social, economic, political and, of course, environmental circumstances.","PeriodicalId":275877,"journal":{"name":"The Italian Review of International and Comparative Law","volume":"42 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139275322","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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