Environmental Law

12/10/2019

Allowing the legal hunting of strictly protected wolves to avoid their illegal killing?

On 10 October 2019 the Court of Justice of the European Union issued a preliminary ruling of importance for the application of the species protection provisions of the Habitats Directive – the principal piece of EU nature conservation law – in Case C-674/17. The underlying case involves the hunting of wolves (Canis lupus) in Finland, the legality of which had been contested by an NGO in the Finnish courts. (This is the EU Court’s second case on the hunting of wolves in Finland, following Case C-342/05, decided in 2007.) The Finnish judge asked the Court of Justice of the EU to clarify certain issues regarding the compatibility of the wolf hunt with the Habitats Directive.

The Finnish court’s questions concerned the scope and interpretation of Article 16(1), which provides the basis on which member state authorities may derogate from the prohibitions in Article 12, and in particular the interpretation of the mystifying derogation ground described in Article 16(1)(e). Wolves in the southern half of Finland, and in most other parts of the EU, have the status of strictly protected species. So do many other species, listed in Annex IV of the Habitats Directive. Article 12 of the Directive requires member states to prohibit the deliberate killing of animals belonging to these species, and various other harmful activities. According to Article 16(1), member state authorities may make or grant exceptions from the strict protection required by Article 12 when three conditions are met: (1) the action concerned (e.g, the hunting of a number of wolves) is for one of the purposes listed in Article 16(1); (2) there is no other satisfactory means of achieving the purpose involved; and (3) the action will not jeopardize the achievement or maintenance of a ‘favourable conservation status’ of the population concerned. The full text of Article 16(1) is as follows:

Provided that there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range, Member States may derogate from the provisions of Articles 12, 13, 14 and 15 (a) and (b):
(a) in the interest of protecting wild fauna and flora and conserving natural habitats;
(b) to prevent serious damage, in particular to crops, livestock, forests, fisheries and water and other types of property;
(c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment;
(d) for the purpose of research and education, of repopulating and re-introducing these species and for the breedings operations necessary for these purposes, including the artificial propagation of plants;
(e) to allow, under strictly supervised conditions, on a selective basis and to a limited extent, the taking or keeping of certain specimens of the species listed in Annex IV in limited numbers specified by the competent national authorities.

Of course, to appreciate the significance of the EU Court’s ruling for the application of the Habitats Directive to wolves and other strictly protected species it is best to read it carefully yourself. Below, however, I share some preliminary thoughts that occurred to me when reading it.

(1) The objective(s) of any Article 16(1)(e) derogation must be clearly identified

The Court now expressly affirms this position, which already seemed to follow from the text of Article 16(1) – after all, how could a member state demonstrate the absence of satisfactory alternatives (a condition applicable to all derogation grounds in Article 16) if it isn’t clear what purpose the derogation serves?

(2) Article 16(1)(e) is not a catch-all provision, but a last resort. Derogations can only be made for purposes not addressed in Article 16(1)(a)-(d)

This concerns a big interpretive question. According to a restrictive interpretation, which the Court now appears to affirm in its ruling, Article 16(1)(e) only covers purposes which are not yet covered by grounds (a)-(d). For instance, killing large carnivores to prevent damage to livestock, pets or other property would not be covered by ground (e) because it is already provided under (b). Furthermore, to claim that 16(1)(e) can be used to prevent minor livestock damage could be seen as inappropriately circumventing the limitation of 16(1)(b) to prevention of “serious” damage to livestock or other property. Following the Court’s restrictive interpretation, Article 16(1)(e) could thus only be used to allow derogations serving private interests other than damage prevention. This covers recreational hunting. (Incidentally, the Court’s case law on the Birds Directive’s equivalent derogation clause has so far precisely only condoned its use for recreational purposes!) According to an alternative, more liberal interpretation (which the Court now seems to say is incorrect), Article 16(1)(e) is a catch-all provision which can justify derogations for basically any objective which member states deem appropriate. (This is the approach taken in Bern Convention guidance on the Convention’s equivalent derogation clause.) According to this reading, preventing minor property damage through an Article 16(1)(e) derogation, to revisit this example, would not be viewed as an invalid circumvention of the requirements of 16(1)(b), for the reason that 16(1)(e) sets out a number of additional requirements or safeguards. In other words, if this second interpretation would have been correct, then in terms of the objectives that may be pursued by Article 16(1)(e) derogations, almost anything goes – thus including increasing tolerance, reducing poaching, protecting dogs from wolves, and so on. The AG Opinion opted for this second, liberal reading, but the Court takes a different view.

(3) ‘Tolerance hunting’ can in theory be based on Article 16(1)(e), but only under very strict conditions which will be hard to meet in practice

A central question in this case was to what degree Article 16(1)(e) can serve as a basis for wolf hunting the purpose of which is to increase tolerance amongst the local human population and therewith reduce illegal killing of wolves. The Court holds that such ‘tolerance hunting’ which has as a purpose the maintenance or improvement of the conservation status of the wolf population involved, can in theory be based on Article 16(1)(e). (One could argue that Article 16(1)(a) already provides a basis to do so, but the Court clearly takes a different position.) The ruling does confirm, however, that the conditions under which a derogation to allow such hunting can be based on Article 16(1)(e) are so strict that they will be difficult to meet in practice.

(4) Evidence is required that the derogation is a suitable means for achieving the objective(s)

Once a suitable objective is identified, the member state planning to issue an Article 16(1)(e) derogation must base this derogation on evidence that the proposed action (e.g. killing a number of wolves) is a suitable means for achieving the objective in the first place. Applied to the present case, according to the Court, the competent member state authority needs to support, on the basis of rigorous scientific data, the hypothesis that the hunting for population management purposes would reduce illegal hunting to such an extent that it would have a net positive effect on the conservation of the wolf population. (Applied to the present underlying Finnish dispute, the Court observes that apparently in that case, hunting for management purposes led to the killing of 13 or 14 more wolves than would have been killed as a result of poaching, and drily concludes that these data appear to suggest that the derogation permits in question are not capable of achieving their objective of combating poaching in the interests of protecting the species – but it is ultimately up to the national judge to determine this.)

(5) Evidence is required that there is no other suitable means of achieving the objective(s)

This is, of course, a well-established condition appearing in Article 16(1) itself, the importance of which has been stressed by the Court on various occasions, and which indeed appears a key legal bottleneck with regard to authorizing wolf hunting on the basis of Article 16(1). The Court highlights the need for convincing evidence, based on scientific information, showing why the sole means of achieving the objectives relied upon in support of the derogation permits was to allow the hunting of a particular number of wolves. All other possible options must have been envisaged and rejected, and the reasons why clearly stated. This is fully consistent with earlier Court jurisprudence. The Court also stresses that the mere existence of illegal hunting and problems encountered in curbing such illegal hunting cannot release a member state of the obligation which it has in the first place of controlling activities that are illegal under the Habitats Directive.

(6) Strict interpretation of Article 16(1)(e)’s specific requirements

The requirements that are specific to Article 16(1)(e) are to be interpreted restrictively, again in accordance with broader Court jurisprudence. We are talking here about the string of conditions from “strictly supervised conditions” through “selective basis” to “limited numbers”.

(7) FCS at various levels. There is scope for approaches at transboundary population level amongst EU member states, but unclear under what conditions

The Court also addresses the big question at what level(s) conservation status is to be assessed and a FCS achieved. Although it does so in a manner that leaves some questions unanswered, it does provide further clarity and, in particular, clarifies that there is scope, in principle, to look at conservation status at the level of transboundary populations shared by various EU member states. And most wolf populations in Europe are shared between two or more countries. According to the Court, in principle, conservation status and the impact of derogations thereon must be assessed (1) on the scale of the territory of the member state involved, or, (2) in member states straddling more than one biogeographical region, the scale of the biogeographical region in question within the member state, or, (3) when the natural range of the species requires it and as far as possible, on a transboundary level. According to the ruling, there is no scope for focusing on the transboundary population insofar as that population extends into non-EU member states (Finland-Russia, Sweden-Norway). What the conditions are precisely for focusing on the transboundary population level is left unclear in the ruling. In this regard, the Opinion of the AG expressly also did “not prejudge whether or not a Member State can establish that the population in question is at a favourable conservation status, where its natural range straddles the territory of several Member States, by proving that it is at that status at the level of the transboundary area concerned,” with a footnote stating that the 2008 LCIE carnivore guidelines (endorsed by the European Commission) “advocate such an approach and highlight the importance of cooperation between States for the purpose of managing populations of large carnivores.” In addition to the preceding considerations, the ruling asserts that it is generally necessary, when applying Article 16(1), to assess a derogation’s impact also at the level of the local population of the species involved – inter alia in light of the cumulative effect of various derogations on the conservation status at national or transboundary level. The Court also asserts that attention must be paid to the dynamics and social stability of the population involved.

(8) A role for management plans

In connection with the requirement that derogations may not adversely affect conservation status, the Court highlights the role that can be played in this regard by management plans and by the determination of maximum numbers of animals that can be killed without adversely affecting conservation status.

(9) Precautionary principle

In cases of uncertainty, the precautionary principle must be applied. In particular, when, after assessing the best available scientific information, uncertainty remains regarding the question whether a prospective derogation would or would not be harmful to the maintenance or recovery of a population of a threatened species in a favourable conservation status, the member state involved must refrain from issuing the derogation.

(10) Derogations when conservation status is unfavourable

The Court reiterates its ruling in the first Finnish wolf case, in that a derogation may exceptionally be permissible when conservation status is not (yet) favourable, if the derogation’s effect is neutral in terms of the species’ conservation status. The ruling stresses the exceptional nature of such derogations, and that the precautionary principle must be applied in case of uncertainty.

Summing up:

The Court expressly confirms that the hunting of wolves (including ‘tolerance hunting’) can in principle be based on Article 16(1)(e), but makes clear at the same time that the conditions to be met are very restrictive. This is also of relevance for other large carnivores and other strictly protected species listed in Annex IV of the Habitats Directive.

There is scope, in principle, for assessing the impact of a prospective derogation on conservation status at the level of a transboundary population as far as EU member states are involved, although the conditions under which this may be done remain unclear. The assessment must also consider the impact on the population at a local level.

Regarding the controversial Finnish wolf hunting that led to this ruling by the EU Court, whereas it is formally up to the national judge in the underlying Finnish case to determine this, the EU Court leaves little doubt that the wolf hunting under scrutiny falls severely short of meeting the various conditions.

Further reading:

The text of the judgment is available here.

A more elaborate analysis of the legality of wolf hunting under European law is forthcoming in the following article:
A. Trouwborst & F.M. Fleurke, ‘Killing wolves legally – exploring the scope for lethal wolf management under European nature conservation law’, Journal of International Wildlife Law and Policy (in press)

26/08/2019

Taxing and Managing Meat: An Integrated Approach to Tackle Climate Change

By Maria Alejandra Serra Barney, Nathalia Cortez Gomez, Lorena Perez Roa and Melanie Auvray (Alumni Tilburg Law School)

A few months ago, a team of four master students from Tilburg University participated in the Geneva Challenge 2018 on Climate Change. Our proposal aimed to tackle greenhouse gas emissions of the livestock industry, by creating a Global Tax Meat Scheme, that would allow countries from all over the world to have a profound transition to a cleaner industry while achieving a change on consumer’s behavior.

Climate Change is one of the biggest challenges of our generation. Action and cooperation from every country is needed, as well as from every sector and industry. While several actions to mitigate Climate Change have been developed in the most acknowledged pollutant industries, such as transportation, mining, or product manufacturing, the severe environmental impacts of the livestock industry have managed to remain in the shadows. Livestock industry alone is responsible for 14.5% of the annual worldwide Greenhouse Gas (GHG) emissions of Carbon Dioxide (CO₂), Methane (CH₄) and Nitrogen Dioxide (N₂O), exceeding the emissions produced by the entire global transportation sector^[1]. Nevertheless, a survey developed by Chatham House along with the Glasgow University in 2014^[2], revealed that livestock sector is not recognized by people as a contributor to climate change^[3]. As a matter of fact, one-quarter of people considered that ‘meat and dairy production contributes either little or nothing to climate change’^[4].

Accordingly, and contrary to popular belief, the livestock industry is responsible for a large amount of the global Greenhouse Gas (GHG) emissions, which are generated through animal physiology (enteric fermentation, respiration and excretions), animal housing, feed crops, manure handling, processing of livestock products and bi-products, transportation and land use for livestock production (deforestation, desertification)^[5]. This should not come as a surprise, considering its strong place in the economies of both developed and developing countries, as the main supplier of global calories, proteins, and essential micronutrients^[6]. Likewise, livestock production is a good alternative in some developing countries that have difficulty growing crops and need to ensure the nutrition of their population^[7], however relying almost exclusively in livestock products entails risks for human health and food security itself. The consumption of meat in developed countries is five times higher than in the developing countries^[8], which increases the risk of colorectal cancer, pancreatic cancer and prostate cancer^[9]. According to the World Health Organization (WHO), red meat (beef, veal, pork, lamb, mutton, horse and goat) has been classified as Group 2A: “probably carcinogenic to humans”; and processed meat (‘hot dogs’, ham, sausages, corned beef, beef jerky, canned meat and meat-based preparations and sauces) as Group 1: “carcinogenic to humans”^[10], just as tobacco smoking and asbestos. This is why the WHO stresses the importance of the reduction on consumption of processed meat^[11], which makes the leading role that meat products have in food security nowadays questionable.

In addition, the increase in the global temperature will have a direct impact on the health and life of livestock animals^[12]. According to experts, the rise in the temperature will enable the acceleration in the growth of pathogens and parasites^[13], which might generate shifts in disease spreading, outbreaks of severe diseases or even introduce new ones^[14], increasing the risk of morbidity and death of livestock. Therefore, relying on livestock products to guarantee the food security in the world might lead to a food crisis in the future.

For environmental, health and food security reasons, livestock production should be limited and regulated. However, when it comes to international environmental treaties and agreements, even though there is a commitment and a mandate for countries to reduce GHG emissions, livestock industry is not really targeted, even though the projections indicate that animal product consumption will continue to increase^[15]. Indeed, UNFCCC and Kyoto Protocol only formulate a fragmented set of rules’^[16] and the Paris Agreement gives general recommendations that prioritize food security rather than targeting livestock industry. Regarding the health and food security issues related to the livestock industry, some countries are already using taxation to encourage healthy eating habits on its population, for instance by raising the prices of sugary soft drinks or sweets. Nevertheless, this approach has never been used on livestock products that, as it was explained before, are known to cause several health issues when consumed in excess.

In this sense, a study on the results on taxing beef, pork and chicken^[17] in Denmark, succeeded to prove that a possible tax on meat would reduce GHG emissions between 10.4% and 19.4% for an average household^[18]. However, we believe that these figures are not enough. Our proposal for the Geneva Challenge 2018 consisted in the establishment of a Global Meat Tax Scheme, which would consider the application of taxes in developed countries and levied on the consumers in order to directly induce changes in meat consumption. It should be collected by national authorities which must ensure that tax revenues are given back to specific actors so they can invest in the development of eco-efficient technologies to support technological improvements of the livestock industry management, or to invest in high protein food alternatives^[19]. Likewise, governments shall cooperate with international organizations in order to promote and support the transition into cleaner technology and farming processes in developing countries .

To make sure that tax revenue funds are safe and utilized solely for the intended purposes, we suggest the utilization of blockchain technology, which would enhance the security of the scheme, guaranteeing the transparency of all transactions being made, and as a consequence promoting trust among governmental entities and individuals. Likewise, States would be under the monitoring and supervision of an international authority, which would assess the compliance of the States and the adequate utilization of the funds.

We invite you to read our full project report for further explanations on this “Global Meat Tax Scheme” and its complementary adaptation and mitigation measures which would allow countries from all over the world to have a profound transition of the industry to cleaner livestock management while achieving a change on consumer’s behavior.

02/05/2019

Restoration of protected lakes under climate change: what legal measures are needed to help biodiversity adapt to the changing climate? The case of Lake IJssel, Netherlands

Throughout the world, lakes are facing deterioration due to intensive economic use. Climate change is exacerbating this situation. The only way forward is through implementing massive ecosystem restoration and connectivity policies, adjusted water management, and policies aimed at assisted colonization of endangered species. Current international and EU law do not explicitly require such policies to be developed and implemented, at least not in a legally binding way. In order to discover the legal prerequisites that facilitate the adoption and implementation of climate change adaptation measures for lakes, it would be good to have a look at some of the current best practices. One interesting example of such best practices is Lake IJssel (IJsselmeer) in the Netherlands, a protected lake under the Ramsar Convention and the EU’s Natura 2000 framework. In this blogpost, I will have a closer look at the adaptation policies in place for this lake with the aim to discover the legal conditions that have to be met for the adaptation policy to be effective. This case study is part of a bigger paper on this topic that was presented at an international conference at the University of Tehran on 14 April 2019, available here.

The creation of Lake IJssel

Lake IJssel (IJsselmeer) only became an inland fresh water lake in 1932, when the former Southern Sea (Zuiderzee) was closed off from the North Sea through the construction of a dam, called the Closure Dam (Afsluitdijk).^[1] Originally, this was a sea arm, part of the estuary of the IJssel and Vecht rivers consisting mainly of marshes and shallow salt and brackish tidal waters. The sea arm was closed off from the North Sea in order to end regular floods that were occurring in the area and to create new agricultural lands to improve food security. After the construction of the dam, parts of the new lake area were reclaimed and converted into land. This land was not only used for agriculture, but also for new cities in order to reduce population pressures in the nearby Amsterdam urban area. The remaining water area became a series of interconnected inland lakes, all of which are now protected areas under both the Ramsar Convention and the EU Wild Birds and Habitats Directives.^[2] Lake IJssel also became the Netherlands’ most important fresh water reservoir for drinking water and agricultural irrigation. It is the biggest fresh water area in northwestern Europe.

Lake IJssel’s poor conservation status exacerbated by climate change

Many of the species and habitat types for which this lake has been designated under the EU Wild Birds and Habitats Directives are not in a favourable conservation status, as required by these important EU biodiversity instruments.^[3] There are several reasons for this. First, and foremost, the transition from this area from a coastal marshland area into an artificial fresh water lake had severe consequences for the naturally occurring ecosystems. A new natural equilibrium has not been reached yet. The water of the lake has excessive quantities of sediments and is increasingly low on nutrients and marshes are disappearing. Over-fishing and increasing pressure by recreation, combined with active human manipulation of water levels to allow for intensive farming and urbanization have turned the lake basically into a big tub with muddy, empty water. The number of fish and other water organisms have declined tremendously, as has the number of birds. Climate change is exacerbating this already poor situation through:^[4] increasing water temperatures (leading to reduced oxygen levels and increased harmful algae blooms), increasing intrusion of alien invasive species (such as the quagga mussel, which affects natural algae and native mussel populations, as well as power and water treatment infrastructure), increasing peaks both in low water levels caused by droughts and high water levels caused by increased precipitation and increased river water run-off, bigger impact of several chemicals, such as phosphates from agricultural run-off in case of high water situations, and chloride from upstream salt mines in France in case of low water levels in summer, bigger impacts from recreation due to longer recreation seasons, increased flood risks due to accelerated sea level rise, which will make it increasingly difficult to flow off river water into the (higher) North Sea.

Legal requirement to restore the degraded Lake IJssel

Lake IJssel was designated as a wetland of international importance under the Ramsar Convention in 2002 and as protected area under the EU Wild Birds and Habitats Directives’ Natura 2000 network in 2010. The EU Directives contain much stricter legal obligations than the Ramsar Convention and have much more legal force through the fact that EU legislation is directly binding under domestic law of the EU Member States and through an enforcement mechanism through the Court of Justice of the EU. As a consequence, the Ramsar Convention has lost much of its relevance for those areas that have also been designated under the EU’s Natura 2000 network (which is the case for all Ramsar sites in the Netherlands).^[5]

For areas designated under the EU Wild Birds and Habitats Directives, conservation goals need to be set, aimed at the specific habitat types and species for which these areas have been designated. As most of the habitat types and species for which the Lake IJssel has been designated under the Natura 2000 network are not in a favourable conservation status, many conservation goals aim at increased populations or at increased acreage for certain habitat types. The latter can only be achieved through restoration, hence restoration is a legal requirement for Lake IJssel. In order to comply with this requirement, the management plans for the lake have adopted a wide range of restoration actions, some of which focus on the climate change related measures discussed in this paper (ecosystem restoration and connectivity, adjusted management, assisted colonization). These will be discussed below. It should be noted that the management plans for Lake IJssel do not just focus on nature conservation, but on all relevant environmental issues. A range of legal frameworks apply to the lake, partly stemming from the EU, such as on water quality and flood management, partly from domestic level, such as on polluted water soils and spatial planning. Furthermore, all of these plans are part of a broader development policy for the Lake IJssel area, called ‘Agenda Lake IJssel area 2050’, covering not just nature conservation, but also water safety, (drinking) water supply, water quality, fisheries, sustainable energy, infrastructure and transport, sand  extraction, landscape conservation, culture, recreation and tourism.^[6]

Restoration plans for Lake IJssel

The first phase of the plans, which runs from 2017 until 2023, primarily aims at stopping the decline in quality and quantity of habitat types and species. To achieve that, the current plan has five main goals: improvement of marshes on the edges of the lake for breeding reed birds, creation of new sandy breeding areas for water birds that breed on sandy beaches, improvement of availability of food for birds, improvement and enlargement of certain habitat types, and more space and tranquility for birds.^[7]

Most, if not all of these goals align with the climate change related adaptation measures that are generally considered important, such as restoration and connectivity, and adjusted management. It is remarkable, though, that climate change is not mentioned a lot in the various documents detailing the restoration requirements for Lake IJssel. I assume that this is because of the already poor conservation status that requires urgent action even without climate change.

The following table lists some of the restoration measures that contribute to climate change adaptation for the lake (despite the fact that they were not specifically proposed with that focus).^[8]

Assisted colonization is not specifically addressed in the management plans. Yet, to some extend, this measure is relevant, although not connected to climate change. In the 1980s the Eurasian otter became extinct in the Netherlands, mostly due to water pollution in the previous decades. The species, however, was reintroduced and now is back in a viable population in the Lake IJssel area. Furthermore, some of the restoration measures do aim to facilitate the natural relocation of species that were not present in the area before. The latter is particularly true for the white tailed eagle that has colonized the area and has been breeding here since 2006. The artificial fish migration river mentioned above helps salmon and other migratory fish to recolonize the lake and the rivers feeding the river. The assisted relocation of soil disturbing fish species from another part of the area to the lake is considered with the aim to improve the quality of the water soil.

Enabling factors for the restoration plans for Lake IJssel

In this section, I will deal with some important enabling factors that determine the success of the plans sketched above: the available financial budget, the role of the various authorities and other stakeholders involved, and the the role of the general public.

Financial budget: The measures discussed above, go at a cost. It is, therefore, important to adopt a multi annual budget. Otherwise, the risk exists that the plans are not executed, or that implementation stops mid-way. In the restoration plans for the Lake IJssel, implementation costs for each of the measures proposed has been included. The estimated budget consists of two elements: costs for construction or establishment of the restoration measures (once off costs), and costs for the first ten years of maintenance of the restoration measures. The total amount of once off implementation costs is between 630 and 1,060 million euro plus between 41 and 89 million euro for maintenance costs for the first ten years.^[9]

The role of the various authorities and other stakeholders involved: The governance structure of Netherlands can be characterized as a decentralized unitary state. This means that central government involves the provinces, municipalities and water districts in the formulation and execution of its policies.^[10] Hence, consensus building is considered to be of vital importance and the Netherlands has a long tradition of always looking for consensus among all those involved. This tradition dates back to early coastal defense and land reclamation activities around 1200, so even predating the establishment of the Dutch State: such activities were only possible with the collaboration of everyone, and, thus through balancing everyone’s interests. This has led to the enactment of laws that have a subtle, and somewhat complex, system of joint decision-making on such topics as water management, nature conservation, and spatial planning. As a consequence, many government bodies are involved in the implementation of the restoration plans for Lake IJssel, as follows. Central government is responsible for coastal and flood defenses that are of national importance (i.e., all coastal defense systems and flood defense systems of the main rivers), as well as for complying with EU-law requirements (vis-à-vis the European Commission). Provincial governments are responsible for nature conservation, and for coordinating water management and spatial planning. Water district boards are responsible for water management (in a broad sense, including water related nature conservation), and municipal governments are responsible for local spatial planning. As the Lake IJssel area is located within four provinces, has 32 municipalities and six water districts, and since five central government ministries are involved in the broader development plans of the area, intensive collaboration among all of these actors is in order. Such collaboration is coordinated by the Minister of Infrastructure and Water. Also involved in this process are non-governmental stakeholders, such as (agri-) businesses and environmental NGOs. Environmental NGOs actually play an important role, as several NGOs own property within the protected areas.

The role of the general public: Local residents, businesses and NGOs are also involved through the regular administrative procedures that need to be followed with all government decision-making (at all levels) and that require effective public participation and access to justice. Hence, there are public hearings and other forms of public participation, and all interested parties have the right to go to court. Thanks to the intensive collaborative decision-making processes aimed at reaching consensus (as sketched above), there, generally, is broad support for the plans once they are adopted. Nevertheless, every administrative decision that is taken to implement the restoration plans, can end up in court. Often, court cases focus on the question whether a certain decision is in compliance with EU law, for example with the EU Wild Birds and Habitats Directives.

Assessment of the Lake IJssel restoration plans

The restoration measures included in the first management plan for Lake IJssel are important first steps to bring the ecological quality of the lake back to an acceptable level. Species and habitat types that are in a favourable conservation status are much more resilient to climate change than species and habitat types that are in a poor condition. The measures aimed at increased connectivity, such as the creation of a fish migration river and of new islands in the lake for the sake of nature are spectacular and have fascinating results even within the first few years after these measures were taken. It is also clear, however, that much more is needed to make the area completely resilient to climate change. Especially those measures aimed at restricting harmful human activities still need to be taken. So far, only some preliminary measures aimed at regulating commercial fishing and recreation were adopted. More restrictions, especially for commercial fishing are considered necessary, which requires redistribution of existing fish permits and closing of certain parts of the lake for fishing. More drastic limitations on shipping and agriculture will follow from restoring natural water levels. Creating more connections with the sea, between the various parts of the lake area, and with the rivers feeding the lake, would also greatly enhance the resilience of the area, but is considered to be risky from a water safety perspective. The current approach of setting small steps towards a gradual more natural ecosystem seems effective for now, but we have to wait and see whether this approach will still work when tough decisions need to be taken that are costly and will have clear negative economic side effects.

05/03/2019

Ethiopia’s New Civil Society Law

A few weeks ago, the Ethiopian Parliament adopted a new law governing civil society organisations (CSOs). It is hard to overstate what an important and remarkable step this is for the civil society sector, their beneficiaries and funders. It is an important step because, up until now, Ethiopian law has radically constrained and frustrated the work and political spaces of CSOs. It is a remarkable step because the adoption of a new CSO law was unforeseeable less than a year ago. In this blog post, we briefly outline some of the key features of the new law and the important ways in which this law differs from the old regulatory system.

A wave of protests in 2017, followed by the surprise resignation of the then Prime Minister, Hailemariam Desalegn, in February 2018 opened the way to what many see as a new political era in Ethiopia’s history. The new Prime Minister, Abiy Ahmed, has committed to a more democratic, transparent and accountable government and has taken some steps towards achieving this goal.

One of the first things the new Prime Minister committed to do was repeal and revise a series of repressive laws, some of which had been in force for nearly a decade. Among these was the Charities and Societies Proclamation of 2009. The 2009 Proclamation states that its purpose is to ensure the right to freedom of association, but in truth, the law largely consisted of different regulatory tactics to restrict and control the activities and funding of CSOs and to significantly increase state oversight of those operations.

Over the course of the past few months, a drafting committee was convened to revise the regulatory framework for CSOs. This committee included a number of CSO representatives. After various drafts as well as public consultations, the revised law was finalized and finally adopted by Parliament. Although the new law is awaiting publication and is not yet in force, it will soon replace the 2009 Proclamation and usher in a new era for civil society in Ethiopia.

In this blog post, we consider some of the key changes that will be introduced by the new 2018 Proclamation. We start with a brief overview of the current law before turning to a discussion of some of the important features of the new legislation.

The 2009 Charities and Societies Proclamation

Ignoring the rights and freedoms embodied in its Constitution, Ethiopia has deliberately and effectively restricted the political space for CSOs through legal measures that strictly regulate the funding, management and scope of work of these organisations. A key component of this has been the 2009 Proclamation.

The 2009 Proclamation categorises CSOs into three groups, namely Ethiopian Charities and Societies;Ethiopian Residents Charities and Societies; and Foreign Charities. Ethiopian Charities and Societies cannot raise more than 10% of their revenue from foreign sources and, as a result, many of these struggle to find funding sufficient to carry out their work or even to remain in operation. Ethiopian Residents Charities and Societies and Foreign Charities are allowed to receive funds from foreign sources but they are not allowed to engage in various kinds of work. In particular, they are prohibited from carrying out advocacy activities in relation to human rights; elections and democracy; gender and religious equality; children’s rights; or the promotion of justice and law enforcement services among other activities. These restrictions have historically been defended by the State as necessary to ensure that activities of a political nature are carried out ‘by the government in collaboration with its citizens’ and not ‘foreign agents’ or entities.

The 2009 Proclamation sought to transform large parts of civil society into a service sector. One of the ways it did this was by strictly regulating the ways in which these organisations could distribute and use their funds. Most importantly, the law required all organisations falling within the scope of its application, regardless of their classification as Ethiopian, Ethiopian Residents or foreign, to allocate an amount of not less than 70% of their budget to operational costs and to allocate not more than 30% to ‘administrative activities’. The so-called 70/30 regulation was meant to ensure that the bulk of CSO funding benefited those in need. However, the Proclamation defined ‘administrative activities’ so broadly that it included a wide range of costs that normally would have been considered part of program implementation costs.  As a result, organisations have been unable to conduct training of their staff, hire researchers or commission studies, network or collaborate, participate in workshops and other learning and sharing opportunities (among many other activities) without overspending their allocated 30%.

Perhaps the single greatest problem in the regulation of CSOs, however, is the oversight of their governance by a Charities and Societies Agency. This is a government entity that is established to oversee and administer the registration, reporting and other activities of CSOs. It has been seen by many in the CSO sector as bureaucratic, incompetent and, worst of all, generally opposed to civil society as a sector.  The Agency has had wide discretion in regard to the registration and closure of CSOs, as well as a range of decisions affecting the day-to-day operations of these organisations.

Through the Agency’s administrative acts and decisions, the restrictive regulatory regime under the 2009 Proclamation has become more cumbersome, constrained and antagonistic to CSOs.

The new 2018 Proclamation – a new era for CSOs in Ethiopia

Although the new 2018 Proclamation starts in a very similar manner to the old – by stating that it is enacted for the purpose of giving effect to the right to freedom of association – the law outlines an entirely new approach to the regulation of civil society organisations. This is unsurprising as the committee appointed to redraft the law included a number of civil society representatives and the drafting process included consultation with CSOs and members of the public.

The 2018 Proclamation departs from the previous funding and membership-based categorization system and refers only to local (or indigenous) and foreign civil society organisations. The law now explicitly provides that all organisations have the right to engage in any lawful activity to accomplish their objectives. In other words, foreign and foreign-funded organisations are no longer prohibited from engaging in activities such as advocacy and human rights work. In fact, a provision has been included to specifically encourage CSOs to engage in advocacy and lobbying in regard to laws and policies “which have a relationship with the activities they are performing”.

While the old categorization of organisations has been abandoned, along with the limits of the activities of foreign and foreign-funded organisations, a shadow of this old system is found in the limitation on “lobbying political parties.” The law states that foreign organisations and indigenous (local) organizations established by Ethiopian resident, foreign citizens may not lobby or influence political parties, nor may they engage in voter education and electoral observation unless otherwise allowed by law. (The law provides that Ethiopian resident foreign citizens could avoid this restriction by establishing CSOs jointly with Ethiopian citizens). This provision aside, the law now actively calls on all CSOs to contribute to democratization and promoting the rights of their members.

Given the role that CSOs played in the drafting of the law, one surprising development is that state control over the distribution of funds is still in place. The 70/30 rule has been replaced by an 80/20 rule – now only 20% of an organisation’s income can be spent on administrative costs. The rule applies to all organisations ‘established for the benefit of the general public or that of third parties.’ At first glance, this appears to be a setback rather than an improvement in the law. However, the law now seeks to define more precisely and unambiguously what constitutes an administrative cost. These costs include salaries of administrative employees, property rentals, bank fees, attorney fees among others. They do not include training, research, networking and other costs that fell under administrative activities in the old law. This is a significant improvement even if the degree of continued state oversight of spending seems excessive.

Under the current regulatory system, CSOs have complained that they were obliged to obtain a range of permissions from the Charities and Societies Agency. Over the past decade, the Agency has had significant power to suspend and shut down CSOs and the authority to decide whether organisations will be permitted to carry out basic activities. CSOs have reported that extraordinary bureaucratic delays, incompetence, high staff turnover and corruption has meant CSOs are forced to wait for weeks (and sometimes months) to open bank accounts, finalise contracts, purchase vehicles and so forth.

The new law also establishes a Civil Society Organisations Agency with powers to oversee the registration and reporting of CSOs. The Agency’s discretion in regard to whether or not an organization may be registered and the circumstances in which an organization can be penalized has been significantly limited. The new law sets time limits on the administrative duties of the Agency (such as requiring the agency to deliver an approval to a CSO to open a bank account within 5 days) but it is not unimaginable that incompetence, high staff turnover and corruption will impede the new Agency and render the time limits meaningless. Importantly, CSOs also now have greater recourse to justice to challenge the decisions of the Agency, something many do not have under the current 2009 Proclamation.

Under the new law, the Agency’s board will be more representative. Under the 2009 Proclamation, the Board comprises seven members all of whom are appointed by the government, including two members to be appointed from the CSO sector. The new law increases the representation of CSOs to three, and stipulates that they are to be selected by the Council of CSOs, and not by the government.

Perhaps one of the most important developments in the law is that it advances a self-regulatory system for CSOs. The new law defines this as ‘a regulatory system led by a voluntary code of conduct adopted by Organizations through the Council to govern themselves’. The Council is a new entity created under the law, to be established by CSOs, but convened by the Agency. The law seems to envision a CSO led entity but one established with the assistance of the State.

Once established, the Council’s primary tasks are to: a) Enact the code of conduct for the sector, and devise enforcement mechanisms in consultation with the Agency, donors and other stakeholders, b) advise the Agency on the registration and administration of organizations, and c) represent and coordinate the civil society sector.

This move to self-regulation marks a significant shift. In the past decade, the sector has been tightly and closely regulated by the State. The new law creates a mechanism for self-governance, and ensures state assistance in putting the mechanism into place. A number of questions remain about whether the Council can effectively represent a sector as large and diverse as the Ethiopian CSO sector, and one that will likely undergo significant changes in this new regulatory environment. Questions also arise as to whether a relationship of trust and good will can be maintained between the Council and the Agency and whether close collaboration between these entities jeopardizes the Council’s independence.

Without losing sight of the many questions that arise, however, the shift to self-regulation is an intriguing and promising one. It demonstrates a shift in the way CSOs are perceived. They are no longer seen by the State as untrustworthy and self-serving, but as an important sector, and one that is best positioned to ensure CSOs are accountable, transparent, committed to good governance and to achieving all they can for their beneficiaries.

This has been a brief introduction to some of the key developments in Ethiopia’s new CSO law. While many questions remain about the effectiveness and efficiency of the new system, the law marks an exciting and important shift in the regulation of CSOs and in the State’s attitude to the sector. With the adoption of this new law, Ethiopia appears to have bucked a global trend towards stricter regulatory controls of CSOs and shrinking political space, as it moves towards greater respect for the right to freedom of association and recognition of the value and importance of a thriving civil society sector.

EDIT: The impact of the new rules were discussed in a two day conference taking place in Mekelle, Ethiopia in May 2019 which attracted around 60 participants from various CSOs (on environment, socio-economic development, consumer protection), from legal aid centres and a legal training centre, from various government authorities and courts (the Charities and Societies Agency – now the CSOs Agency -, the Federal Environment Forest and Climate Change Commission, the Regional Environmental Protection Office, the Regional Bureau of Justice, and the Regional Supreme Court), from the media, and from various research institutes. The Forum for the Environment (FfE) made this booklet with the proceedings of the conference.

11/12/2018

Impact of Single Issue Funding on Sustainable Development CSOs

By: Nicky Broeckhoven & Dina Townsend (Post-doctoral researchers, Tilburg Law School)

Researchers from Tilburg University and Mekelle University are currently collaborating on a project that aims to investigate the role of civil society organisations (CSOs) in securing sustainable development in Ethiopia. In our first blog post, we looked at restricted civic space and the impact thereof on local CSOs.[1] In this blog post, we discuss some initial findings on the impact of single issue funding. This project is part of the ‘New roles of CSOs for Inclusive Development’ Programme which investigates the assumptions underlying the civil society policy framework ‘Dialogue & Dissent’ of the Dutch Ministry of Foreign Affairs. This research is funded by NOW-WOTRO.

Mekele (Photo: D. Townsend)

Over the course of the past six months, we have conducted a series of interviews with CSOs working in Ethiopia to better understand how these organisations adapt under a regulatory regime that radically constrains their funding and activities. While regulatory constraints affect the sustainability of these organisations, a recurring theme in our interviews concerns the considerable impact of ‘single-issue funding’. Single-issue funding includes grants and funding programmes that address problems and concerns in an atomistic and isolated manner.

Single-issue funding is particularly problematic for organisations working on complex environmental problems like sustainable development, climate change and food security. Both foreign and local CSOs reported that they have been forced to either shut down or shift their programme focus due to new funder priorities. The organisations we interviewed told us that funding opportunities over the past year or two have been concentrated in the area of migration and displacement. Work on food security and other resilience programmes do not meet the funding requirements for many of these grants.

One organisation described receiving funding from a Dutch Funder to address crisis relief in Ethiopia. With this funding, the organisation established a number of local initiatives focused on food security at a local, community level. In 2017, the Dutch funder changed the focus of that funding to address migration, and the organisation no longer qualified for funding. This resulted in a loss of years of built up expertise and good community relations. This is particularly problematic in the Ethiopian context where CSOs had been portrayed as self-serving and unreliable. It also affects the stability and resilience of the communities who had previously benefited from the work of the CSO. Productive and beneficial programmes are forced to either stop or shift their focus, as funding priorities follow the shifting political winds.

This example is particularly worrying from an environmental point of view as addressing concerns such as food security, sustainable development and climate change – which also may not fall under migration funding – generally require long term engagement and are rarely short term. In addition, an atomistic approach is in direct conflict with funders’ own aims and goals, as addressing environmental threats and ensuring food security are crucial components of addressing unsustainable levels of migration.

A shift in donor focus can also have a significant, and often overlooked, impact on the institutional set-up and human resource situation of a CSO. One organisation told us that, despite their extensive expertise in environmental issues, they no longer qualified for many grants. Donor priorities had shifted to migration and the organisation could not easily transfer the expertise they had to a new and different focus area. Another organisation described how changes in donor focus had had a serious impact on their financial stability, making it harder for the organisation to retain capable and qualified staff.

Our initial findings suggest that, while state regulation in places like Ethiopia may have a significant impact on CSOs, shifting funding priorities might also jeopardize their sustainability and undermine their efforts.

07/11/2018

Bilateral treaties and corporate impunity: the recent developments of the Chevron Ecuador case before the Permanent Court of Arbitration

By Anna Berti Suman (TLS)

In December 2016, we published a blog post on the Chevron’s Ecuador ‘saga’, presenting the case as an example of the failure of the global environmental justice system. We presented five different scenarios of the battle for justice that since 1993 the Ecuadorean indigenous plaintiffs fight against the Chevron oil giant. Among these fronts, we here zoom in on the scenario that sees Chevron Corporation and its subsidiary Texaco Petroleum Co. against the Republic of Ecuador, the so-called ‘Chevron III’ case [1]. The case was initiated in 2009 by the company under the U.S.-Ecuador Bilateral Investment Treaty (BIT) before the Permanent Court of Arbitration in The Hague [2]. Chevron requested the arbitral panel to declare the State of Ecuador (through Petroecuador, the oil public firm part of the Ecuadorean consortium in which Texaco operated) as the exclusively liable entity for any judgment issued in the Ecuadorean litigation, Chevron vs. Aguinda. Specifically, the arbitral panel was asked to invalidate the $ 9.5 billion dollars judgement rendered against Chevron in Ecuador in 2011 that found the company guilty for its oil dumping in the Ecuador’s Amazon region where Texaco (later acquired by Chevron) operated between 1964 and 1992. The judgement, issued in 2011 by the Ecuadorean Supreme Court, was recently confirmed by the Ecuadorean Constitutional Court [3]. Chevron’s argument is based on two grounds: first, the company lamented the violation of the U.S.-Ecuador BIT inasmuch as the State of Ecuador did not grant a fair trial to the company in the Ecuadorean judgment. In addition, Chevron defended that it was released from any liability by the Republic of Ecuador by signing an agreement with the State in 1998 absolving the company of any future responsibility for its past operations in Ecuador.

On August 30, 2018, the Permanent Court of Arbitration released an award in favour of Chevron, finding that the Republic of Ecuador violated its obligations to protect U.S. companies under the U.S.-Ecuador BIT and international law. The arbitral panel said that the 2011 Ecuador Supreme Court’s ruling had been obtained through fraud, bribery and corruption, thus violating Chevron’s right to a fair trial in Ecuador. The tribunal consequently held that the company is not obliged to comply with the $9.5 billion judgment [4]. In occasion of the Arbitration Court’s decision, Pablo Fajardo, lawyer of the Union of Affected People by ChevronTexaco (UDAPT) representing the 30.000 victims of the Chevron’s oil contamination, and Justino Piaguaje, President of the Secoya Indigenous people, visited Tilburg University. In a seminar organized by Professor Jonathan Verschuuren and Anna Berti Suman at Tilburg Law School on October 26, the guests discussed the Chevron-Ecuador case in light of the recent judgement, reflecting on the applicability of the award against the Ecuadorian plaintiffs and on the broader questions that such an award raises. Letty Fajardo Vera and Suzanne Hagemann, spokespersons of the UDAPT respectively in the Netherlands and in Switzerland, and Charlie Holt, legal counsel for Greenpeace International in Amsterdam, joined the seminar as discussants.

Mr. Piaguaje introduced the participants to the reality of life ‘on the side’ of the oil contamination left by Chevron and what this means not only for human health but also for the preservation of the unique indigenous culture and lifestyle. Mr. Fajardo continued the discussion with a focus on the legal questionability of the award. From a strictly legal point of view, Fajardo stressed that the allegedly violated U.S.-Ecuador BIT was signed on August 27, 1993, and entered into force on May 11, 1997, which is five years after the termination of Texaco’s operations in Ecuador. However, the arbitral panel applied the BIT retroactively to facts occurred prior to its entry into force. Secondly, it is pretentious that an arbitral panel can affect the Ecuadorean Aguinda ruling, because it cannot have any jurisdiction over the Aguinda plaintiffs that did not even appear in the arbitral trial. In addition, the alleged release from responsibility granted to the company by the Ecuadorean government when the company terminated its operations in Ecuador only regards government’s claims and not private parties’ claims like those of the Aguinda plaintiffs, as also stated in the 2011 Ecuadorean judgment [5].

The recent development of the case inspired a discussion on a number of aspects. First, the stand of the Permanent Court of Arbitration vis-à-vis victims of environmental crimes has been questioned.  As Fajardo stressed, it is inadmissible for an arbitral panel to order a State to invalidate a judgment issued in a judicial process between private individuals and ratified by all national judicial instances. The award puts the commercial interests of companies before the human rights of the affected communities. The risk that bilateral treaties may act as a shield protecting transnationals from accountability for human rights violations emerged. In addition, the ruling clearly undermines the sovereignty of the Ecuadorean State and its judicial independence. By asking Ecuador to invalidate the 2011 judgment, the arbitral tribunal is compelling the State to violate its constitutional norm, to disrespect the independence of functions, and to jeopardize the human rights of the Ecuadorian citizens. Overall, the dangerous precedent that this arbitral decision may set was manifested. As a matter of fact, the case risks to become a precedent for releasing from responsibility companies that, with the complicity of states, commit environmental crimes against human beings. The award represents a failure or lack of environmental justice in a system that appears rather dominated by corporate impunity.

Photo credits: seminar photos by Letty Fajardo Vera & UDAPT (bottom photo showing Pablo Fajardo, Charlie Holt, and Justino Piaguaje); Cuyabeno rainforest photo by Jonathan Verschuuren

[1] PCA Case No.2009-23, Chevron Corp. and Texaco petroleum Co. vs. the Republic of Ecuador.

[2] See Chevron’s Notice of International Arbitration Against Government of Ecuador.

[3] Case No. 174-2012, verbal proceeding No. 174-2012, Maria Aguinda Salazar y otros v. Chevron Corporation, Quito, November 12, 2013.

[4] For more information on the case see A universal obligation of enforcing environmental justice? The Chevron-Texaco case as an example of the actual system’s failure.

[5] Ruling of Presiding Judge Nicolas Zambrano Lozada, Provincial Court of Sucumbíos, 14 February 2011, pp.34, 176.

09/10/2018

Urgenda Climate Change Judgment Survives Appeal in the Netherlands

Today, the Court of Appeal in the Dutch city of The Hague rendered its judgment in the Urgenda case. As explained here, in 2015, the District Court decided that the Dutch State acted negligently and therefore unlawfully towards the environmental NGO Urgenda by implementing a policy aimed at achieving a GHG emissions reduction for 2020 of less than 25% compared to the year 1990. The government of the Netherlands appealed the case mainly because it objected against the interference by the court with the content of government policies which should be discussed in Parliament rather than in Court, following the principle of separation of powers.

Climate change impacts affect the enjoyment of human rights: courts have to intervene

In another sensational judgment, the Court of Appeal today rejected all objections by the State in firm and straightforward language. The Court of Appeal stated that there is an imminent and real danger that the right to life and the right to private and family life as protected under the European Convention on Human Rights (Articles 2 and 8 respectively) will be infringed by climate change impacts. To reach this conclusion, the Court of Appeal, like the District Court in 2015, follows IPCC reports, but also resolutions adopted on all UNFCCC COPs of the past decade, which all indicate that the CO₂ concentration in the atmosphere has to remain within the 450ppm limit or even within a 430ppm limit if the 1.5 degree target were to be observed. The Court of Appeal briefly summarized the impacts that are considered certain when global average temperatures reach 2 degrees Celsius (No. 44).

The State is obliged, under this human rights treaty, to take protective action. When so asked by individuals or NGOs,^[1] courts are obliged to test government actions (including policies) against human rights. So no infringement of the principle of separation of powers. On the contrary: testing government actions against human rights belongs to the core of the power of courts. By only setting the required outcome of policies (at least 25% emissions reduction by the end of 2020), the court leaves it up to the Cabinet and Parliament to discuss through which policy interventions this aim will be achieved, thus avoiding interference with policy-making.

In remarkably clear language, the Court of Appeal rejected all other objections that the State had brought forward and which resemble arguments brought forward in many of the other climate litigation cases across the world. I will deal here with the most relevant ones:

Uncertainty and precautionary principle

The State argued that climate change impacts are too uncertain a basis for claims like the one by Urgenda. Here, the Court of Appeal invokes the precautionary principle. The Court of Appeal stressed the importance of the precautionary principle, which it considers a binding principle in cases like these (referring to the text of the UNFCCC and the 2009 Tatar case decision of the European Court of Human Rights). Opposite to what the State argues, it is precisely the uncertainty (especially with regard to the existence of dangerous tipping points) that requires the State to have a proactive and effective climate policy (No. 73).

Causal link

Many cases elsewhere were unsuccessful because of a lack of causal link between the government policy on the one hand and climate change impacts on the other. In this case, the Court of Appeal argues that causality is less of an issue as no damages have been claimed, just an order to implement a certain policy. In that case, it “it suffices (in brief) that there is a real risk of the danger for which measures have to be taken. It has been established that this is the case” (No. 64).

Relationship to EU policies

The State argued that it has to follow and is following EU laws and policies and cannot be required to do more, as within the EU climate laws have for a large part been harmonized. The Court rejects this statement by referring to the latest Dutch policy goals for 2030, which aim at 49% reduction, which is more than the current EU target for that year. If the State wants to do more than the EU in 2030, it cannot argue that it cannot do more in 2020. Furthermore, the State did not substantiate its claims that having a stricter policy in place than that required by the EU harms the level playing field for Dutch companies. (Nos. 57-58)

Relationship to adaptation measures

According to the Dutch government, the Court should have taken into account the adaptation policies that have been put in place to protect the Dutch population against climate change impacts. This argument was rejected too. The Court of Appeal considered it unlikely that all severe climate change impacts can be dealt with through adaptation measures. (No. 59)

Interdependence policies other countries

The Dutch government also indicated that avoiding dangerous climate change impacts requires strict policies to be adopted across the world: since it cannot influence these domestic policies abroad, the Netherlands cannot be required to reduce emissions on its own. The Court of Appeal simply rejects this by referring to the special position of the Netherlands as a rich, developed state that has gained much of its wealth through extensive use of fossil fuels. Quite humourful, it adds: “Moreover, if the opinion of the State were to be followed, an effective legal remedy for a global problem as complex as this one would be lacking. After all, each state held accountable would then be able to argue that it does not have to take measures if other states do not so either. That is a consequence that cannot be accepted, also because Urgenda does not have the option to summon all eligible states to appear in a Dutch court.” (No. 64) There was an outbreak of laughter in the Court room after the latter sentence was spoken by the president of the Court of Appeal!

2020:  too short notice

Drastic policy changes like the one ordered by the Court in first instance are unattainable, we need more time. This argument used by the State in appeal was rejected too. The Court of Appeal simply referred to the fact that the State was aware of the IPCC reports dating back to 2007, and even, originally, had a much stricter policy in place for 2020. That policy, however, was changed in 2011, following elections. It now comes back as a boomerang!

Role of future generations

In the 2015 Court judgment, the Court indicated that the State also acts unlawful towards future generations. In today’s judgment, the Court of Appeal does not repeat this, but instead argues that human rights infringements are imminent already for current generations, so there is no need to also go into the question whether legal obligation towards future generations exist. (No. 37)

We will engineer ourselves out of the problems 

The State argued that its policy goals partly rely on climate engineering (“negative emissions technologies”) through which CO₂ can later be removed from the atmosphere. The Court, however, is not willing to take these future technologies into account: “the option to remove CO₂ from the atmosphere with certain technologies in the future is highly uncertain [..] (and) the climate scenarios based on such technologies are not very realistic considering the current state of affairs”(No. 49).

Today the Dutch Court of Appeal followed the bold move by the District Court in the world’s first successful climate litigation case of Urgenda. That first judgment of 2015 has sparked many initiatives across the world to start similar proceedings. The decision in appeal shows that the legal arguments used are valid. The new decision will, in my view, therefore, further boost global climate litigation.

[1] Here, Dutch law goes beyond what is required by the European Convention on Human Rights as under case law by the European Court of Human Rights (ECtHR) environmental NGOs cannot invoke human rights in an attempt to defend the environment as a general interest. According to the ECtHR, NGOs are only allowed to represent the individual interests of their members in case their members are potential victims of human right infringements. See extensively Jonathan Verschuuren, Contribution of the case law of the European Court of Human Rights to sustainable development in Europe, in: W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Edward Elgar 2015) 363, at 371-372.

05/10/2018

Supporting Local Civil Society Organisations in Ethiopia

By: Nicky Broeckhoven & Dina Townsend (Post-doctoral researchers, Tilburg Law School)

Researchers from Tilburg University and Mekelle University are currently collaborating on a project that aims to investigate the role of civil society organisations (CSOs) in securing sustainable development in Ethiopia. This project examines how CSOs have evolved and changed in response to legislative limitations on their scope of work and funding, and how this has affected their ability to work on and promote sustainable development. In this blog post, we discuss some findings from interviews conducted with a range of organisations, based both in Ethiopia and abroad. This project is part of the ‘New roles of CSOs for Inclusive Development’ Programme which investigates the assumptions underlying the civil society policy framework ‘Dialogue & Dissent’ of the Dutch Ministry of Foreign Affairs. This research is funded by NOW-WOTRO.

In 2009, the Ethiopian government adopted a new proclamation that governs the civil society sector. At the heart of this law is a system of categorization of CSOs based on their sources of funding and the nationality of their members. The law creates three groups. The first are Ethiopian Charities and Societies who are locally registered, controlled by Ethiopians and receive no more than ten percent of their funding from foreign sources. The second group, Ethiopian Resident Charities and Societies, are organisations registered in Ethiopia and whose members all reside in Ethiopia, but who receive more than ten percent of their funding from abroad. The last group, Foreign Charities, consists of those organisations registered in another country and controlled by foreign nationals, who receive their funding from foreign sources. The significance of this categorization is that only organisations falling into the first group, Ethiopian Charities and Societies, can engage in work related to human rights and democracy, and only these organisations can work on policy advocacy and lobbying. Organisations falling in both the other groups are primarily limited to service-oriented activities.

This regulatory regime has received worldwide attention and has been heavily criticized for closing down the political space of the CSO sector. For the most part, however, this attention has been focused on the impact of the regulatory regime on foreign and foreign-funded organisations (groups 2 and 3).

Over the course of the past few months, we have been conducting a series of interviews with organisations working on and in Ethiopia, in all three groups. What this research seems to suggest is that the impact of CSO laws on local Ethiopian Charities and Societies (group 1 organisations) has been severe, but largely overlooked in current debates in both academic and political fora.

While Ethiopian Charities and Societies can engage in political and human rights work, their ability to do so is radically constrained by their limited access to funding and excessive administrative and reporting obligations. These organisations struggle to raise local funds in a country plagued by poverty and in a political environment that has long viewed CSOs as suspect and as self-serving. Those with the capacity to fund local organisations are reluctant to do so either because they do not want to be associated with a sector historically viewed as hostile by the government or because they feel these organisations lack legitimacy and effectiveness.

This lack of funding and local support means many Ethiopian Charities and Societies face high staff turnover and have been forced to radically downscale their activities, including reducing the scope of their work and the areas in which they work. Organisations working on environmental and development issues in remote and rural areas have often been forced to shut down regional offices. In one case, an organization informed us that it had to stop its programme on food security and related activities, and focused instead on single groups and rights issues, sacrificing the holistic, multi-faceted approach they had previously adopted and shifting their focus away from sustainable development priorities.

Ethiopia is in a moment of extraordinary political change. It is a moment of change that was almost unimaginable as recently as February this year when the government imposed yet another state of emergency in response to protests in the Oromia region. Under the leadership of the new Prime Minister, Abiy Ahmed, Ethiopia has taken huge strides towards greater political liberalization over the past few months, releasing political prisoners and welcoming back the exiled political opposition. Prime Minister Ahmed has made it clear that revising the regulation of CSOs is a priority on his list of reforms. A working committee, consisting of various stakeholders, has already been formed to propose reforms in regard to a range of controversial issues, including the Charities and Societies law. For many working in the civil society sector, this is a time of great excitement and hope.

Many of the CSO employees we have interviewed, however, saw an ongoing need for foreign funders and organisations to be closely and carefully regulated, even if they consider the current regulation to be excessive. They believe that legitimate concerns remain about foreign funding, donor agendas and the potential for foreign influence in policy-making through the CSO sector. Even if the new regulatory regime will allow Ethiopian organisations to attract a greater degree of funding from foreign sources, many issues remain. For example, it is possible that greater foreign funding may do more to harm their reputations in an already hostile social environment. Many organisations are working hard to establish their legitimacy with both local communities and local government authorities and it is far from clear that an injection of foreign-sourced funding will improve those relationships. What’s more, foreign-funded projects in the sustainability sector often fail to understand the unique and complex social and environmental context in Ethiopia, resulting in projects that risk doing more harm than good.

This raises an important question: What role could or should foreign funders play in supporting and assisting Ethiopian Charities and Societies, if any?

Our initial findings suggest that Ethiopian Charities and Societies need support of a number of kinds. These include support through research, networking, training and awareness-raising about their work and impacts. This is particularly important for those organisations working on environmental and sustainability matters who may need greater scientific input, or help communicating with farmers and communities in difficult to reach areas. This is work that can be done without directly funding these organisations and need not wait for regulatory change. Importantly, more efforts are needed to create and support sources of local funding, regardless of any changes that may come to the regulatory regime.

Our research thus far suggests that understanding the social environment in which these organisations operate is very important. In the next phase of our empirical research, we hope to extend our understanding of this environment by interviewing a range of social actors, including community-based organisations, church organisations, private sector actors, regulatory bodies and tertiary institutions.

Rural Ethiopia (All photos: Jonathan Verschuuren)

19/03/2018

Citizen participation in the decision-making over airports’ expansion agenda: the Amsterdam Schiphol case

The Amsterdam Schiphol Airport, representing the fourth airport in Europe in terms of passengers and air transport and the third European airport in terms of goods, has generated technical, political, economic and social discussions about its expansive policies since its inauguration in 1916. The airport is owned by the “Schiphol Group”, a limited liability company which, together with Royal Dutch Airlines KLM, controls the airport’s expansionary policies. With the advent of the deregulation in the aviation sector in the early 90s, the Dutch government had to balance the interest of the national growth linked to airport expansion with the objectives of ecological sustainability. Currently, the sector is regulated – among others – by the Noise Abatement Act (Wetgeluidhinder), the Space Planning Act (Wetruimtelijke Ordening) and the Aviation Act (Wetluchtvaart), which from 2019 will be replaced by a single legislative framework, the Single Law on Environmental Planning (Omgevingswet; Staatsblad n.156). The legislative intervention aims precisely at balancing the protection of the environment and the conservation of the ecosystem with the interests linked to economic growth.

In order to counterbalance these opposing interests, a scheme based on the so-called “dualbeleidsdoelstelling” (dual political objective) was adopted at the national level. This approach has led to the creation of numerous collaborative bodies aimed at tackling complex problems and taking difficult decisions regarding the environmental impact of the airport. An example of such structural interventions aimed at creating a dialogue between the interested parties is the Alderstafel (Alders Table), founded in 2006 and still existing. The Alderstafel, named after its former minister and social democrat president Hans Alders, is a consultative body composed by representatives of the public sector, citizens and businesses. Specifically, the Ministry of Infrastructure and the Environment forms the Alderstafel for the first category. The municipalities potentially affected by the expansion, namely the Municipalities of Haarlemmermeer, Amstelveen, Uitgeest and Amsterdam, united in the Bestuurlijke Regie Schiphol (Address Commission for Schiphol) are also represented. Among the commercial parties, the representatives of the Schiphol Group, KLM and Air Traffic Control The Netherlands (LVNL) join the Table. Finally, the civic component is represented by the Schiphol Regional Advisory Committee and the Association of Consultative Platforms, reflecting the interests of the residents of the areas surrounding the airport.

The experience of Alderstafel produced in 2008 a leading opinion on the future expansion of Schiphol for the period comprised between 2008 and 2020. The opinion, adopted unanimously by the participants of the Alderstafel, was presented on October the 1^st 2008 to the Dutch Government and  to the Dutch Lower House, which subsequently translated the opinion into agreements on limits to Schiphol’s growth and environmental impact. These agreements included a series of measures to limit noise disturbance in the medium and short term for the sake of the residents’ health and wellbeing, such as changes to routes, microclimatic approaches for limiting the local disturbance, measures to combat ground noise and higher fares for noisy aircrafts and night flights.

Experiences such as that of the Alderstafel find their justification in the right to participate in the res publica recognized to all citizens, a right which is not expressly formalized in the Dutch Constitution (Grondwetvoorhet Koninkrijkder Nederlanden). As a matter of fact, the Constitution seems to be limited to enunciate the right to hold a public office (Art.3), to elect (Art.4) and to present petitions (Art.5). Furthermore, also the right to health and to live in a healthy environment entail the right to participate in decisions that can affect such rights. While recognizing these rights, the Dutch Constitution seems to assign a primary role to the authorities designated for this purpose with regard to the protection of the environment (Art.21) and health (Art.22). Consequently, a constitutional recognition of a more active role of the citizen in defending these rights is missing. As Michels^[1] pointed out, citizen participation in the Dutch system, although recognized as an element contributing to the strengthening of democracy, is nevertheless often limited to representative democracy. Michels and De Graaf^[2] tackle the issue by observing how citizen participation in decision-making often plays an “instrumental” rather than expressive purpose. This would derive from the fact that participatory projects are frequently designed by the government and not by citizens. The authors point out that, in most of Dutch participatory decision-making experiences, as the Alderstafel, citizens have the opportunity to contribute to decisions by providing information and suggestions, without however changing the vertical structure of the decision-making process.

This contribution suggests that  a more ‘bottom-up’ application of participatory tools to the formal decision-making process in the case of infrastructural projects with environmental impact (in this case, noise pollution) would ensure that citizen participation is not a mere “democratic experiment”. To this end, an experience of civic participation from below is contextualised and problematized, in view of searching a proactive rather than passive citizen inclusion. The experience at issue regards a group of inhabitants living in the surrounding of Schiphol who decided to challenge the claim by the Dutch Government that noise could not be measured, but rather just calculated on the basis of mathematical estimates. In the name of the right to live in a healthy environment, citizens created a system of microphones positioned on the roofs of their houses to obtain evidence of noise impact on their quiet. Through Wi-Fi connection, such information on noise levels was sent from the microphones to the residents’ computers, which in turn transmitted this data to a central server via the network. The collected noise data was subsequently recorded on a website (currently called “Sensornet”). The publicly accessible website allowed users to view graphs of noise pollution in the surroundings of the Schiphol area, either in their entirety or specifically for each microphone. Difficulties in conducting the measurements, such as the problem of interference from other noises, were solved by triangulation methods in the arrangement of the microphones for each measuring station. Being an initiative based on unsophisticated technologies, there was the problem of microphones calibration and accuracy of the collected data. However, the detail and granularity of the information provided by the visualization of the acoustic loads recorded in 25 observation points during continuous periods compensated for possible technical weaknesses.

The initiative attracted the attention of a wider audience, composed not only of activists and local inhabitants, but also of influential non-governmental organizations, the press and public bodies. The platform from a local initiative became a noise measurement infrastructure at the national level. At the local level, numerous municipalities opposing the system of noise assessment supported by the government, adhered instead to the system born ‘from below’. A professional foundation, “Geluidsnet”, took over the “Sensornet” platform in order to create a joint venture between the bottom-up noise measurement infrastructure and 10 municipalities located in the affected areas. “Sensornet” currently appears as an established noise measurement platform that lists, among its customers, numerous Dutch municipalities (such as Gemeente Zoetermeer, Borne and Pijnacker-Nootdorp) and government organizations such as RIVM (the Dutch Institute for Health and the Environment) and ProRail (the public organization in charge of the Dutch railway network). Although the majority of “Sensornet” customers are now governmental organizations, the platform still provides an easy and accessible method for citizens to actively contribute in the measurement of noise pollution.

Although there has not been a substantial change in how the Dutch Government is assessing the noise, it is interesting to mention some concrete actions taken by the Schiphol Group that seems suggesting a greater attention to the interests of the citizen. For example, the airport has introduced specific flight techniques (routing) for departure and landing aimed at reducing the noise. In addition, the airport intends to minimize the background noise generated at the take-off of the planes through the use of specific barriers (ridges) adjacent to the slopes.^[3]

The discussion on a proper appreciation of the contribution of the concerned citizens in the assessment of noise seems particularly timely at present days when the expansion of Lelystad Airport is under discussion. The Schiphol Group, also owner of this latter airport since 1993, today plans to expand Lelystad Airport in order to accommodate up to 10,000 flights in 2019, which is expected to become 45,000 flights in the following decades. Various activist groups oppose the expansion due to the project’s feared environmental and public health impact. To date, the Dutch Government still seems to prefer a calculation of the noise disturbance rather than its measurment.^[4] Overall, it appears that the bottom-noise monitoring initiative had significant effects on local and national politics. However, Lelystad’s current expansionary agenda indicates that, in the Netherlands, the effective inclusion of the citizens in the decision-making process over infrastructural projects with high environmental impact is still scarce.

The present contribution through the analysis of two participatory tools, one from the top (the Alderstafel) and one from the bottom (the “Sensornet” noise measurement system), highlighted how citizens’ participation in environmentally impacting decisions can have a merely passive or, rather, a proactive role. In the first case, there is the fear that citizen participation becomes limited to a mere democratic experiment, an experiment that would not satisfy the citizens’ needs and would not lead to the resolution of the conflict. On the other hand, experiences of ‘bottom-up’ civic participation, although more responding to the needs of the citizen, would be more difficult to be accepted by the institutions responsible for managing the environmental issue.

Such participatory experiences aimed at creating a dialogue between interested parties in order to prevent or manage possible environmental conflicts could qualify as environmental mediation. Yet the experience of the Alderstafel, although representing a successful form of environmental mediation, nevertheless lacks the ability to ensure a proactive citizens’ contribution. Differently, the second experience, “Sensornet”, has effectively reconciled the needs of the local authorities, the municipalities concerned, with those of the citizens. Nonetheless, such bottom-up initiatives, as tending to reverse the vertical decision-making process, are difficultly compatible with the institutional status quo, as also proven by today’s expansion agenda of Lelystad Airport.

[1] Michels, A. (2006) ‘Citizen participation and democracy in the Netherlands’, Democratization (13)02: 323-339, doi: 10.1080/13510340500524067, p.323.

[2] Michels, A. & De Graaf, L. (2010) ‘Examining Citizen Participation: Local Participatory Policy Making and Democracy’, Local Government Studies (36)4: 477-491, doi: 10.1080/03003930.2010.494101, p.488.

[3] Schiphol Group (2018) Buitenschot – From ground noise reduction to land art park.

[4] De telegraaf (2017) Fouten bij berekening geluid Lelystad.

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This post is partly inspired by the article published by Anna Berti Suman and titled “Challenging risk governance patterns through Citizens Sensing: the Schiphol Airport case”, recently published in the journal “International Review of Law, Computers & Technology” with ISSN: 1364- 6885, DOI: 10.1080/13600869.2018.1429186.

12/03/2018

Energy dual pricing as a harmful fossil fuel subsidy: What the WTO can do

Energy dual pricing has been a contentious topic in the WTO for decades, but now the focus is on its harmful environmental effects. Dual pricing encourages wasteful consumption of fossil fuels and displaces cleaner sources of energy. There are several ways in which the WTO can and should contribute to reforming and phasing out fossil fuel subsidies, and tackling dual pricing practices is one of them.

 What is energy dual pricing and why is it harmful?

Energy dual pricing is a practice through which resource-endowed states sell their energy resources at significantly lower prices on the domestic market – for instance, through their monopolistic state trading enterprises – as compared to the price on the export market. The main reason for states to maintain dual-pricing policies is to provide their domestic energy consumers with cheap energy and their intensive industries with low-cost fuel inputs. Russia, Ukraine and the OPEC members, notably Saudi Arabia, are some of the countries that have used dual-pricing policies over the last decades.

It is debatable whether dual-pricing policies are WTO inconsistent per se, but it is certain that these policies are trade-distorting and have an impact on international trade. More importantly, considering the way dual-pricing policies are administered, they can fit into the broader category of environmentally harmful fossil fuel subsidies. Dual pricing allows setting the domestic price of energy from fossil fuels artificially low: countries that maintain these policies thus encourage the burning of “cheap” fossil fuels at below global market prices, to the detriment of switching to cleaner forms of energy. In this way, dual pricing undermines the competitiveness of green energy and contributes to increased CO2 emissions in the atmosphere.

Constraining dual pricing under existing WTO rules

Although the WTO was primarily created to deal with matters that affect cross-border trade, the global trade body can, and should, contribute positively to eliminating fossil fuel subsidies, including dual pricing and its negative impacts on the environment. For instance, a WTO member may raise a case in dispute settlement if its domestic industry suffers significantly from another WTO member’s dual-pricing policies that result in cheap energy inputs for competing industries.

If administered in a way that restricts quantitative exports of the energy resource, dual-pricing measures may fall foul of Article XI.1 of the GATT, which prohibits quantitative import and export restrictions on goods. GATT Article XVII on State Trading Enterprises (STEs) could also serve as a basis for a potential claim, as an STE of a WTO member maintaining dual pricing policies may be found to behave in a discriminatory manner.

More importantly, there is also a good argument to be made that dual-pricing practices constitute prohibited or actionable subsidies – Article 3 and 5 of the Subsidies and Countervailing Measures Agreement (ASCM). This would depend on whether the dual-pricing measure fits the definition of Article 1 ASCM. As an example, the government provision of cheaper energy inputs for energy intensive industries could be considered a “government provision of goods and services”.

Considering the case law already in existence, the Anti-Dumping Agreement (ADA) is perhaps an even more straightforward tool in countering the negative impact of dual pricing. It could be argued that dual pricing is a case of “reversed input dumping”; in other words, that goods which benefit from cheap energy inputs – by means of below-market energy prices – are dumped on the market of the importing country (for example steel products) due to cheap domestic inputs. At present, there are several such cases pending in the WTO: European Union – Cost Adjustment Methodologies and Certain Anti-Dumping Measures on Imports from Russia and EU – Anti-Dumping Measures on Certain Cold-Rolled Flat Steel Products from Russia.

While environmental concerns may not be the primary motive for a dual-pricing case in WTO dispute settlement, it may have positive knock-on effects.A dispute settlement case would certainly attract attention to the necessity of phasing out dual-pricing policies. It would also send a strong signal that these policies are not immune to being challenged in the WTO.

Moreover, such a move could back recent efforts to put the important issue of fossil fuel subsidy reform on the WTO radar. In fact, during the WTO’s Eleventh Ministerial Conference (MC11), held recently in December 2017, a group of WTO members issued a ministerial statement about the need to  reform fossil fuel subsidies, seeking to advance discussion in the WTO on achieving ambitious and effective disciplines for fossil fuel subsidies, including through enhanced transparency and reporting.

Inspiration from EU free trade agreements

Beyond existing rules, WTO members should consider revisiting the negotiation of a prohibition of dual pricing within the WTO legal framework. This could be part of larger efforts to reform subsidy rules. Although efforts to include a prohibition on dual pricing have been unsuccessful in the past, momentum has been created in view of climate change mitigation commitments and the UN Sustainable Development Goals.

Moreover, the recent accomplishments by the EU serve as a successful example of tackling dual pricing: the topic of dual-pricing prohibitions has been raised in several stages of Transatlantic Trade and Investment Partnership (TTIP) negotiations. More importantly, an actual prohibition of dual pricing has been taken up in the trade-related energy chapter of the recent EU–Ukraine Deep and Comprehensive Free Trade Agreement.

Creating policy space to support green energy

Aside from using the multilateral trading system to curb dual pricing, its negative environmental effects can be offset by creating more policy space for green energy. For this, it is essential to redraft and rethink current subsidy rules in a sophisticated manner.

The WTO could learn from the options provided by the EU rules on state aid: the Commission Guidelines on State Aid for Environmental Protection and Energy 2014-2020 offer detailed instructions to EU member states on how to design their support for green energy. The goal of the guidelines is to propose a market-based approach towards green energy support schemes, while at the same time ensuring that these schemes remain in line with EU State aid law. The WTO could develop similar guidelines for its members, thereby ensuring that members design their green energy support schemes in a WTO-consistent manner.

Moreover, state aid rules provide a set of accepted exceptions set out in the General Block Exemption Regulation (GBER). The regulation declares certain elaborate categories of state aid towards green energy as being compatible with the internal market. These options could serve as a model for WTO members when considering the wider reform of subsidy rules.

Forward action

The EU examples may serve as an inspiration for longer-term solutions within the WTO framework. At present, apart from exploring the options under existing rules, it is crucial that WTO members continue to push for including the topic of fossil fuel subsidy reform on the WTO’s agenda. The recent ministerial statement on fossil fuel subsidy reform is a good start, and follow-up actions are now needed to take reform efforts forward. Most importantly, the demandeurs of fossil fuel subsidy reform will need to continue stressing the importance of fossil fuel subsidy reform in view of climate change mitigation.

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This contribution was originally published as a blog for the International Centre for Trade and Sustainable Development, Geneva, and is available through this link. It is derived from the paper Fossil Fuel Subsidy Reform in the WTO: Options for Constraining Dual Pricing in the Multilateral Trading System commissioned by ICTSD and authored by Anna Marhold. It is part of the E15 engagement track  through research and policy dialogues on fossil fuel subsidies.