Research & publications 2017

Anastasia Telesetsky, An Cliquet, Afshin Akhtar-Khavari
Ecological Restoration in International Environmental Law

Human activities are depleting ecosystems at an unprecedented rate. In spite of nature conservation efforts worldwide, many ecosystems including those critical for human well-being have been damaged or destroyed. States and citizens need a new vision of how humans can reconnect with the natural...

This is the first published book to examine comprehensively the relationship between international environmental law and ecological restoration. While international environmental law (IEL) has developed significantly as a discipline over the past four decades, this book enquires whether IEL can now assist states in making a strategic transition from not just protecting and maintaining the natural environment but also actively restoring it. Arguing that states have international duties to restore, this book offers reflections on the philosophical context of ecological restoration and the legal content of a duty to restore from an international law, European Union law and national law perspective. The book concludes with a discussion of several contemporary themes of interest to both lawyers and ecologists including the role of private actors, protected areas and climate change in ecological restoration.


Aysegül Sirakaya An Cliquet Jim Harris
Ecosystem services in cities: Towards the international legal protection of ecosystem services in urban environments

Global population will reach 9.7 billion by 2050, which will result in a majorly urbanised world. In order to attain to international targets concerning biodiversity such as the Aichi Biodiversity Targets, there is an evident need in introducing and restoring biodiversity in urban areas. Urban...

Biodiversity provides many ecosystem services in cities that are beneficial to human well-being including adaptation to the effects of climate change and positive effects of nature on human health. Rapid urbanization however is causing an adverse impact on biodiversity and the ecosystem services they provide. Protecting and restoring urban biodiversity and ecosystem services can increase human well-being of the rapidly increasing urban population. Today, however, the international biodiversity conservation practice mainly focuses on rural areas, and not on urban conservation and restoration. Within city scale, there are several opportunities to green urban living, such as green infrastructure and urban parks and nature reserves. This paper investigates the current scientific practices for promoting and protecting ecosystem services in urban areas. Secondly, the authors review and assess the legally binding instruments on biodiversity at the international and EU level in order to see if there are sufficient existing mechanisms for protection of ecosystem services in urban areas. Thirdly, the paper elaborates on the Aichi Targets in order to explore whether or not these targets are enough to facilitate the protection and enhancement of ecosystem services in urban areas as swiftly as they are needed.

Laura Lallier Arianna Broggiato Dominic Muyldermans Thomas Vanagt
Marine genetic resources and the access and benefit-sharing legal framework

(2016) The marine microbiome : an untapped source of biodiversity and biotechnological potential. p.453-472

The legal landscape regulating the access to and utilization of genetic resources has changed with the entry into force of the Nagoya Protocol in 2014, and the adoption of the related EU Regulation on user compliance in 2014. Moreover, many countries are now adopting laws that regulate access to their genetic resources. This has clear implications for scientists working on genetic resources, including those doing taxonomic and biotechnology research on marine micro-organisms. The first part of this chapter informs the scientific community on the Access and Benefit-Sharing legal framework, including a focus on their application to marine genetic resources, for which the United Nations Convention on the Law of the Sea (1982) is also relevant. The difference between (domestic) access legislation to genetic resources and the compliance mechanisms, such as the Nagoya Protocol and the EU Regulation 511/2014 are explained in detail. A more practical description is then presented in a step-by-step approach, which can serve as a basic guideline for scientists.

Hendrik Schoukens Jan De Mulder Nektaria Moskofidis

Throughout the past decades, the rules on environmental impact assessment (EIA) have moved to the forefront of most planning policies worldwide. EIA, together with the specific rules on strategic environmental assessment (SEA), entails that preventive action should be taken, that environmental damage should, as a priority, be rectified at source and that the polluter should pay. Effects on the environment should be taken into account at the earliest possible stage in all the technical planning and decision-making processes with regards to plan, programmes and projects. Also reasonable alternatives to the purported actions are to be studied, while the public concerned needs to be allowed to actively participate in the decision-making process. In view of the increased judicial scrunity, the concrete application of EIA/SEA is giving rise to an increased number of deadlock scenarios.  In the Flemish Region, several planning permits for large infrastructure projects have recently been quashed by court rulings because of an ideqaute application of the EIA/SEA-requirements. In their recently published handbook, written in Dutch, Hendrik Schoukens, Jan De Mulder and Nektaria Moskofidis  comprehensively analyze the EIA/SEA rules that are applicable within the Flemish Region. By closely examining the interlinkages between the international, EU and regional rules on EIA/SEA this handbook offers the reader a valuable insight in a complex legal matter.

Tom Ruys
Reflections on the crime of aggression

Justiciability, Complementarity and Immunity: Reflections on the crime of aggression

Some 70 years after the first and, so far the only, criminal prosecutions pertaining to the ‘supreme international crime’ took place, the activation of the – long dormant – jurisdiction of the International Criminal Court (ICC) over the crime of aggression appears imminent. At the time of writing, 32 States Parties had ratified the Kampala Amendments on the Crime of Aggression, thus exceeding the 30 ratifications required under Articles 15bis and 15ter of the ICC Rome Statute (RS). The moment of truth will arrive somewhere after 1 January 2017, when the Assembly of States Parties will need to adopt a decision affirming the Court’s jurisdiction. As the activation of Articles 8bis, 15bis and 15ter RS is drawing nearer, the debate over the prosecution of the crime of aggression has again taken off with renewed vigour. Against this background, the present essay revisits the suggestion that the crime of aggression is inherently non-justiciable, on the one hand, as well as the critique that the activation of the ICC’s jurisdiction over the crime of aggression will have a detrimental effect by inspiring (highly politicized) prosecutions of alleged ‘aggressors’ before the national courts of third States, which are moreover incompatible with the par in parem axiom.

Luca Ferro
'Brothers-in-Arms': Ancillary State Responsibility and Individual Criminal Liability for Arms Transfers to International Criminals

The Military Law and the Law of War Review, volume 54(1), 2017, pp. 139-188

This article focuses on the doctrine of complicity that features in both the law on State responsibility and international criminal law, using inter-State arms transfers ultimately (ab)used for the perpetration of international crimes as the backdrop for its legal reasoning. The article is divided in three parts. Section I sets out the legal requirements that determine under what circumstances a State can be held (secondary) responsible for assisting another State in the commission of internationally wrongful acts, in general, and international crimes in particular. Furthermore, section II deals with the modes of liability under international criminal law that proscribe individual conduct that aids, abets, or otherwise contributes to the perpetration of an international crime through the provision of material support. Finally, section III looks at the relationship between the former two. More specifically, it discusses what, if any, consequences may be drawn from establishing secondary State responsibility for the criminal liability of State officials and vice versa.

Zacharoula Kyriazi Raul Lejano Frank Maes Steven Degraer
A Cooperative Game-Theoretic Framework for Negotiating Marine Spatial Allocation Agreements among Heterogeneous Players

Journal of Environmental Management, volume 187, 2017, pp. 444-455

Marine spatial allocation has become, in recent decades, a political flashpoint, fuelled by political power struggles, as well as the continuously increasing demand for marine space by both traditional and emerging marine uses. To effectively address this issue, we develop a decision-making procedure, that facilitates the distribution of disputed areas of specific size among heterogeneous players in a transparent and ethical way, while considering coalitional formations through coexistence. To do this, we model players' alternative strategies and payoffs within a cooperative game-theoretic framework. Depending on whether transferable utility (TU) or non-transferable utility (NTU) is the more appropriate assumption, we illustrate the use of the TU Shapley value and the Lejano's fixed point NTU Shapley value to solve for the ideal allocations. The applicability and effectiveness of the process has been tested in a case study area, the Dogger Bank Special Area of Conservation in the North Sea, which involves three totally or partially conflicting activities, i.e. fishing, nature conservation and wind farm development. The findings demonstrate that the process is capable of providing a unique, fair and equitable division of space Finally, among the two solution concepts proposed the fixed point NTU Shapley value manages to
better address the heterogeneity of the players and thus to provide a more socially acceptable allocation that favours the weaker player, while demonstrating the importance of the monetary valuation attributed by each use to the area.

An Cliquet Hendrik Schoukens
Terrestrial protected areas

in: J. Razzaque & E. Morgera (eds.), Biodiversity and Nature Protection Law, Encyclopedia of Environmental Law, Edward Elgar Publishing, 2017, 110-122.

The establishment of protected areas is one of the cornerstones of nature conservation law and policy. Protected areas deliver numerous benefits for humankind that go far beyond their boundaries.

Global assessments show that around 15% of the terrestrial area has a protected status. However, only a minority of protected areas enjoy effective management. International legal obligations for protected areas are included in multilateral agreements and regional instruments.

This article begins with the description of the concept of protected areas and ecological networks, their value and global overview and assessment of protected areas.  It then focuses on the most relevant multilateral agreements for terrestrial protected areas, namely the Ramsar Convention, the World Heritage Convention and the Biodiversity Convention. The article concludes with some recommendations for future research.

Tom Ruys Luca Ferro Nele Verlinden Carl Vander Maelen
JUFIL Digest of State Practice - NEW ISSUE OUT NOW

JUFIL Digest of State Practice - 1 July - 31 December 2016

The latest Digest of State Practice, covering jus ad bellum practice in the period 1 July - 31 December 2016, is now available online. It was edited by GRILI members Tom Ruys and Luca Ferro, and by Nele Verlinden (KU Leuven) and Carl Vander Maelen (UGent).

Eva Brems Ellen Desmet Wouter Vandenhole
Children’s Rights Law in the Global Human Rights Landscape

Children’s rights law is often studied and perceived in isolation from the broader field of human rights law. This volume explores the inter-relationship between children’s rights law and more general human rights law in order to see whether elements from each could successfully inform the other. Children’s rights law has a number of distinctive characteristics, such as the emphasis on the ‘best interests of the child’, the use of general principles, and the inclusion of ‘third parties’ (e.g. parents and other care-takers) in treaty provisions. The first part of this book questions whether these features could be a source of inspiration for general human rights law. In part two, the reverse question is asked: could children’s rights law draw inspiration from developments in other branches of human rights law that focus on other specific categories of rights holders, such as women, persons with disabilities, indigenous peoples, or older persons? Finally, the interaction between children’s rights law and human rights law – and the potential for their isolation, inspiration or integration – may be coloured or determined by the thematic issue under consideration. Therefore the third part of the book studies the interplay between children’s rights law and human rights law in the context of specific topics: intra-family relations, LGBTQI marginalization, migration, media, the environment and transnational human rights obligations.

Alexandra Hofer
'The Developed/Developing Divide on Unilateral Coercive Measures: Legitimate Enforcement or Illegitimate Intervention?'

Chinese Journal of International Law, volume 16(2), 2017

Unilateral coercive measures are condemned by the UN General Assembly on a yearly basis for being contrary to international law and for having negative effects on human rights and the economy of developing States. Although legal doctrine generally finds that the limitations of economic coercion are a grey area of international law, these resolutions could be indicative of an emerging prohibition. Upon closer scrutiny, however, it would appear that they do not satisfy the required criteria—as developed by international jurisprudence and doctrine—for establishing a new custom. That being said, the resolutions clearly illustrate a divide between developed and developing States on the legitimacy of unilateral sanctions that should not be dismissed. In the interests of understanding how this division came into existence and how we can overcome it, the article proceeds to address the social factors that lead to its creation.

Tom Ruys
Sanctions, retorsions and countermeasures: concepts and international legal framework

in L. van den Herik (ed.), Research Handbook on UN Sanctions and International Law (Edward Elgar: Cheltenham)(2017), pp. 19-21

This chapter aims at giving a broader overview of the concepts of sanctions and countermeasures and the overarching international legal framework. At the outset, a note of caution is due. In spite of the laudable efforts of the International Law Commission, the issue of enforcement by means of non-forcible measures is and remains ‘one of the least developed areas of international law’. Notwithstanding its importance, it remains plagued by a variety of delicate controversies and grey areas. The present chapter’s aim is essentially to map the main knowns and, perhaps even more so, the main unknowns. Section 2 looks at the extent to which sanctions may constitute mere ‘unfriendly’ retorsions that largely operate below the radar of international law. In the alternative, Section 3 examines the main accepted legal bases which may justify the recourse to sanctions by States and organizations. Section 4 turns to the controversy over the legality of third-party countermeasures. Section 5 concludes.

Arie Trouwborst, Andrew Blackmore, Luigi Boitani, Michael Bowman, Richard Caddell, Guillaume Chapron, An Cliquet, Ed Coudens, Yaffa Epstein, Eladio Fernandez-Galiano, ...
International wildlife law: understanding and enhancing its role in conservation

BioScience, Vol. 67, Issue 9, 1 September 2017, pages 784-790.

The role of international legal instruments in biodiversity conservation has until now received relatively little attention in the conservation literature. Nevertheless, with their long-term, legally binding commitments on a transboundary scale, such instruments can be important, sometimes indispensable, implements in the conservation toolbox. After providing an overview of relevant instruments, we explore why international wildlife law matters, and what can and cannot be expected of it. We identify, on the one hand, the many different ways in which international legal instruments can deliver, and have delivered, conservation outcomes. On the other hand, we discuss the inherent limitations of international law, and provide illustrations of past achievements as well as failures. We conclude that it is worthwhile to continue to invest in making the most of international wildlife law for conservation by following an informed, selective approach. To that end, we issue a call for increased cooperation between international wildlife lawyers and other conservation professionals. There is much to be gained, partly by enhancing the legal framework itself, but especially by seizing the many opportunities for advancing the effective application of the law as it stands.

An Cliquet, Kris Decleer
Halting and restoring species loss: incorporating the concepts of extinction debt, ecological trap and dark diversity into conservation and restoration law

Griffith Law Review, Law Theory Society, Aug. 2017, pages 1-24.

Although there are many conservation and restoration obligations and targets, implementation thereof has so far been insufficient to halt or slow down biodiversity loss. In this context, efforts for ecological restoration must be accelerated. In fulfilling legal obligations and policy targets on restoration, it is important for lawyers and policy makers to understand the underlying ecological concepts. In this article three concepts, that are largely unknow in legal literature, are clarified, namely extinction debt, ecological trap and dark diversity. Their implications in law and policy are analysed and recommendations are made for better integration for these concepts into restoration projects. We recommend more efforts for monitoring beyond the simple presence of certain species, a higher ambition level for restoration measures, a substatial increase in measures for connectivity and restoration  measures for 'absent' species.

Eva Brems Ellen Desmet
Integrated Human Rights in Practice Rewriting Human Rights Decisions

This book aims to introduce concrete and innovative proposals for a holistic approach to supranational human rights justice through a hands-on legal exercise: the rewriting of decisions of supranational human rights monitoring bodies. The contributing scholars have thus redrafted crucial passages of landmark human rights judgments and decisions, ‘as if human rights law were really one’, borrowing or taking inspiration from developments and interpretations throughout the whole multi-layered human rights protection system. In addition to the rewriting exercise, the contributors have outlined the methodology and/or theoretical framework that guided their approaches and explain how human rights monitoring bodies may adopt an integrated approach to human rights law.

Ikboljon Qoraboyev Emre Turkut

Much has been written on the increasing significance of domestic courts in the international realm. However, the role of the Turkish constitutional judges in determining and orienting the relationship between international law and Turkish domestic law has rarely been subject to legal analysis. Literature on the involvement of the Turkish judges in transnational judicial dialogue is also almost non-existent. As far as the existing Turkish literature is concerned, much of the contemporary writing on the subject tends to focus on the hierarchical position of international agreements in the Turkish legal order. This paper intends to fill an important gap in the scholarship by providing an analysis of the decisions of the Turkish Constitutional Court (TCC) and by illuminating the TCC’s role as implementers or non-implementers of international law, and the scope of their participation in transnational judicial dialogue. Relevant sub-questions concern the extent to which the stance of the TCC’s judges may or may not alleviate concerns of the international community on the rule of law in Turkey, and whether their engagement in international law is substantial enough to limit and moderate the excesses of different political forces, including those in power, engaged in the domestic power struggle.

Jennifer Durden Laura Lallier Kevin Murphy Aline Jaeckel Kristina Gjerde Daniel O.B. Jones
Environmental Impact Assessment process for deep-sea mining in ‘the Area’

Volume 87, January 2018, Pages 194–202

Environmental Impact Assessment (EIA) is key to the robust environmental management of industrial projects; it is used to anticipate, assess and reduce environmental and social risks of a project. It is instrumental in project planning and execution, and often required for financing and regulatory approval to be granted. The International Seabed Authority currently requires an EIA for deep-sea mining (DSM) in areas beyond national jurisdiction (the Area), but the existing regulations present only a portion of a robust EIA process. This article presents an ideal EIA process for DSM, drawing upon the application of EIA from allied industries. It contains screening, scoping and assessment phases, along with the development of an environmental management plan. It also includes external review by experts, stakeholder consultation, and regulatory review. Lessons learned from application of EIA elsewhere are discussed in relation to DSM, including the integration of EIA into UK domestic law, and the reception of EIAs prepared for seabed ore extraction in the Exclusive Economic Zones of New Zealand and Papua New Guinea. Finally, four main challenges of implementing the EIA process to DSM in the Area are presented: 1) EIA process for DSM needs to incorporate mechanisms to address uncertainty; 2) detailed requirements for the EIA process phases should be made clear; 3) mechanisms are needed to ensure that the EIA influences decision making; and, 4) the EIA process requires substantial input and involvement from the regulator.

Gert Vermeulen Ellen Desmet
Essential Texts on European and International Asylum and Migration Law And Policy

This volume comprises the relevant legal instruments and principal policy documents in the area of international and European asylum and migration, including the latest versions of pending legislative proposals. The range of issues covered is comprehensive: human rights; nationality and statelessness; equal treatment, non-discrimination, racism and xenophobia; citizenship, residence and free movement; borders, border management and entry; visa and passenger data; labour migration; family reunification; asylum, subsidiary and temporary protection; irregular migration; and trafficking in human beings.
The texts have been ordered according to the multilateral co-operation level within which they were drawn up: either the United Nations, the Council of Europe or the European Union (including Schengen-level instruments).
This edition provides practitioners, authorities, policy makers, scholars and students throughout Europe with an accurate, up-to-date and forward-looking compilation of essential texts on asylum and migration matters.