This book has shown that the reality of the exercise of the right of public access to environmental information is rather different from and more complicated than much of the discussion of the topic suggests. From the Rio Declaration through the Aarhus Convention to the Environmental Information (Scotland) Regulations 2004 (EI(S)R), the provision of information is seen as a means of promoting the development of environmentally engaged citizens and enabling them to participate effectively in decision-making procedures with a view to protecting and enhancing the environment. Only a few of the uses fit well with this vision and, even when they do, users are left frustrated that they are not able to exercise more influence over decision-making procedures. As such, there is a gap between the aspirations of the right and the reality of its use that needs to be considered.

The most basic point perhaps is the low level of awareness of the existence of the particular right to environmental information that is distinct from any entitlements under more general laws on freedom of information and that lies behind information being accessible. Whether or not the use of the right is recognised as such by those involved, the practice does not always match the aspirations that lie behind it. The parties involved are more diverse than can be encapsulated in a single category of “users” or “holders” of information, and their relationships are shaped by their engagement not only with each other but also with a range of non-human actors. In addition, their motivations are often very different from the environmental objectives that providing access to environmental information was designed to serve. The overall result is a system where mismatches arise as a result of different motives and expectations, leading to frustrations and getting in the way of the right always being smoothly and successfully implemented. That different actors will define success in relation to the right differently, particularly in terms of focusing on procedural or substantive outcomes of engaging with the right, adds to the complexity.

In recent decades, the introduction of a right of public access to environmental information has been acclaimed as a major achievement in improving environmental governance across the world and it is frequently asserted that this right “will improve environmental protection”. Yet remarkably little work has been undertaken to examine how the right is being used in practice and whether it is in fact making a difference. This book will provide some answers to those vital questions, building on empirical work in Scotland to identify lessons that are of general application. It offers insights into the workings of the processes for accessing environmental information – who is using them, what information is being sought and for what purposes? – and into whether what is happening in practice lives up to the aspirations that underpin the introduction of the right. The findings reveal a significant mismatch between aspirations and practice that requires consideration of what is currently being achieved and how the position might be improved.

The research behind this book was carried out at the University of Dundee and was supported by a grant from the Economic and Social Research Council (ref. ES/P010067/1), running from January 2018 to June 2020. The investigators who submitted the proposal, Professor Colin Reid in Law and Dr Jonathan Mendel in Geography, were joined by Dr Sean Whittaker as a research assistant until he was appointed Lecturer in Law in late 2019. For the final months of the funded project, this research assistant post was filled by Dr Petya Dragneva who – despite the disruptions caused by the COVID-19 pandemic – was able to do excellent work in preparing interview material for archiving, working on interview transcripts, and other parts of the project. A project website was established and is available at: https://sites.dundee.ac.uk/envinfo.

Analysis of the right of access to environmental information is generally conducted through one of two legal perspectives. The work here offers insights beyond these typical approaches both by drawing more on social theory and through empirical study of how the right is operating in practice. The first conventional approach, relying on a widespread legal methodology, studies the legal framework and also the aims and aspirations that underpin the creation of the right, “grappling with the foundational concepts that inspire the ambitious vision” that lies behind it. The second, narrower approach seeks to examine the right through the doctrinal method of analysis, an approach which focuses on the internal working and operation of “black-letter” law and its position within the legal hierarchy. The latter perspective follows the legal origins of the right and the way it has been embodied. From the Stockholm Declaration through the Rio Declaration and the Aarhus Convention to the measures ensuring its implementation in the EU and Scotland, the recognition and development of the right have been dominated by the law and the legal procedures which give it effect. The doctrinal methodology, with its basis in legal study, thus dominates discussion and analysis of the right of access to environmental information.

Both approaches bring numerous benefits in analysing the right of access to environmental information. The focus on the underlying concepts and ambitions enables access to information to be considered in the wider context of analysing governance. The doctrinal approach, by adopting an internal perspective on the laws that govern the right, offers analysis that can consider the internal logic of these laws and whether they are aligned with the objectives that they are seeking to achieve. However, while both approaches provide valuable perspectives on the right, they do not consider whether the law operates in the “real world” as intended. Described as the gap between “the law in the books” and “the law in action”, there is a risk that relying wholly on either methodology will result in a distorted understanding of the right that is based on how the law was intended to operate or is assumed to be operating rather than how it actually operates in practice.

In recent decades, the introduction of a public right to access environmental information has been acclaimed as a major achievement in improving environmental governance across the world and it is frequently asserted that this right “will improve environmental protection”. This book critically assesses that assertion, examining the operation and impact of the right in practice to see how far what happens in real life matches the assumptions and aspirations that surround the right. Ultimately this leads to an examination of the value of a distinct right to environmental information operating separately from wider rules on transparency and freedom of information.

There can be no doubt that the environment needs greater protection, not least from the overarching issue of climate change and its negative impacts on both humanity and the wider environment. Such global concerns are also felt locally in relation to climate adaptation and mitigation measures, but local concerns also focus on other issues, such as land use and urban planning matters, waste disposal, water quality, noise and smells. An increased interest in environmental matters has led to a more intense desire from the public for greater transparency and involvement in environmental governance. While this interest is seen in non-environmental issues as well, there has been a particular emphasis on transparency, accountability and public participation in the environmental context due to the increased recognition of our shared vulnerability to, and responsibility for, the Earth’s environmental degradation. It is from this recognition that the right of access to environmental information was born.

This right was created as a means of promoting the flow of environmental information between the state and the public, either through proactively publishing environmental information or disclosing environmental information on request. At the core of the right is the assumption that the disclosure of such environmental information will contribute to humanity’s efforts to slow, or even reverse, the degradation of the environment. This will be achieved by promoting the transparency and accountability of public bodies in environmental matters, but even more so by encouraging and enabling public participation in decision-making on environmental issues.

The right of access to environmental information has been the focus of this book so far, but this right does not operate in isolation. Linked to the right of access to environmental information is the right to participate in environmental decision-making procedures. Broadly defined as ensuring the ability for individuals to participate in environmental decisions made by a public authority, the development of this right and its role in protecting and enhancing the environment has occurred in parallel with the right of access to environmental information. Indeed, at the extreme, the right to access information can be presented as a subsidiary matter, existing merely to ensure that public participation can be effective. How far the use of the right to access environmental information is in practice linked to the exercise, and effectiveness, of the right to participate – and the broader efficacy of public participation – are therefore crucial to exploring what these rights are achieving.

INTRODUCTION

The parallel development of the rights to access environmental information and to participate in environmental decision-making is evidenced in the Rio Declaration, which boldly asserted that: “Environmental issues are best handled with the participation of all concerned citizens.” The Rio Declaration was notable not just for this assertion, but for also explicitly linking the provision of environmental information with the ability to effectively participate in environmental decision-making procedures. This position was generally adopted in subsequent legal instruments, particularly the Aarhus Convention, and represented a broader trend towards viewing human rights and “environmental participatory rights” as a connected set of rights.

Yet the stark clarity of the assertion made by the Rio Declaration masks the fact that there is considerable uncertainty over what such participation is supposed to achieve and how it should be made possible. As Lee and Abbot noted: “Participation has a very strong pull on environmental policy making, but its meaning and aims are rarely made clear.” The rationale for promoting participation has been subject to considerable debate, reflecting a divergence in how public participation, and its aims, are conceptualised, with different levels of empowerment for the public involved.

Cambridge, Cambridge University Press, 2021, 140 pages, £ 26.99

In his latest book, Abdullahi Ahmed An-Naim examines the relationship between human rights, the lack of success in protecting them, and the continuing neocolonial infl uence of former colonial powers in international relations, but also in terms of the framing of human rights. The author analyses the reasons for the ineff ectiveness of global human rights protection and identifi es viable alternatives, on a theoretical and practical level, to overcome these challenges.

In the first two chapters, An-Naim argues that the main reason for the lack of success of existing human rights protection is that the treaties are not based on universally valid values, but, rather, are a product of postcolonial power relations created by the Global North to maintain its power relations. He therefore accuses Western Europe, Russia, and the United States in particular, of ‘protecting their strategic interests and expanding their geopolitical and economic hegemony’, while pretending to defend and promote universally valid human rights. He supports his arguments with realpolitik observations, and illustrates the strengths and weaknesses of international law by depicting the massive infl uence of the five permanent members of the UN Security Council. According to his arguments, decisions and interventions of the Security Council are not aimed at improving the living conditions of the ‘protected’, but are instead primarily aimed at maintaining national interests. In this context, the author accuses the United States of hypocrisy when it comes to the protection of human rights by highlighting the paradox of having minimal ratification rates of human rights treaties, coupled with extensive reservations and other restrictions on the scope of the treaties, while at the same time the United States claims global leadership in this area.

A second inherent problem wiThexisting human rights frameworks is the Eurocentric theoretical concept on which they are based. The imposition of European (liberal) values, legal systems and institutions as the sole sources of human rights leads to two major implications: on the one hand, to a renewed projection of the normative authority of former colonial states, and, on the other hand, this exclusive framework protects only certain rights, namely those that follow the European narrative of liberal rights.

ABSTRACT

Refugee integration is a highly politicised topic and is rarely analysed from a legal perspective. This contribution aims to address this gap by tracing the potential of the right to be integrated in legal terms, analysing its legal sources in European human rights law, and in European Union (EU, the Union) law, using a doctrinal method. It answers the question: is there a state obligation to provide integration support for refugees? And, alternatively, is there a right for refugees to be integrated? While such an acknowledgement has a high value from a practical perspective, to further the rights of refugees by legally obliging states to build inclusive societies in line with democratic values and principles, it is also important from the point of view of ensuring legal certainty. By being sensitised to the different uses and underlying principles of integration, judges could ensure a higher level of legal consistency in cases pertaining to integration. The contribution reveals that there is a right for refugees to be integrated which has its source in EU law. However, as it has not been invoked so far, the current analysis proposes an interpretation of that right in terms of both its content and level of protection.

INTRODUCTION

In recent years, the study of integration has come under a lot of criticism in social sciences, with critics disparaging the concept altogether due to its inherent bias towards imposing a vision of society ruled by majority and white-privilege power structures. In response, other scholars have argued for the value of integration research, and for the need to distinguish between the analytic and policy concepts of integration, calling for a critical approach to the latter. Integration remains a highly politicised topic and, as such, is rarely analysed from a legal perspective, as much as there is a need for such analysis. Despite remaining a political concept, integration is often used in the case law both of the Court of Justice of the European Union (CJEU) and of the European Court of Human Rights (ECtHR), the two major supranational courts in Europe.

ABSTRACT

This contribution takes Turkey’s use of the derogation mechanism in the aftermath of the failed military coup of 15 July 2016 as a springboard to critically address the operation and the fallacies of the contemporary European derogation regime. The assessment will reveal whether the European system of human rights protection has succeeded in adopting an adequate and viable approach that can counterbalance the increased leeway accorded to derogating states, and formulate safeguards to mitigate human rights abuses. The contribution concludes by providing a road map proposal for adequate oversight marked by rigorous scrutiny of derogation claims that can be described as a ‘consultation and cooperation process’. This process would place the Secretary General of the Council of Europe in a more active and operationally focused position to influence state decisions, to counterbalance the increased leeway accorded to derogating states, and to formulate safeguards to mitigate human rights abuses.

INTRODUCTION

Emerging as they did from a long and terrible war, human rights for all were to become ‘the foundation of freedom, justice and peace in the world’. To a considerable extent, international measures aimed at the protection of human rights are a success story. However, they frequently become vulnerable or inadequate in the face of the significant problems that arise when a state’s political survival is in danger. It is undeniable that states may be confronted wiThextraordinary situations posing fundamental threats to their territory, such as wars, terrorist attacks and natural calamities, and that, in such situations, they may resort to exceptional measures in order to overcome these perils and restore normality. More specifically, the expansive protections set forth in international human rights instruments such as the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) can be subjected to derogation in times of national emergency.

Derogations, permitted under many human rights treaties, provide a ‘legal breathing space’ for states, enabling them to take ‘a rational response to domestic political uncertainty’ they are facing. In this vein, they do not conflict with the normative foundations and notion of human rights, but, rather, may contribute to their effective realisation and protection, given states’ positive obligations to protect the right to life.

ABSTRACT

Universities, as hubs of free exchange and analysis, and as cradles of new generations of change-makers, have always played a crucial role in contributing both a sound scientific basis for, and an analytical voice on, political decisionmaking. In recent years, when governments appear less capable and willing to protect democratic values and human rights, actors and institutions outside of governments are taking up an increasing responsibility towards achieving these objectives. In the context of the emergence of non-traditional human rights actors, this contribution analyses the human rights agency of universities. As a case study, it focuses on the recent crisis in Afghanistan, triggered by the Taliban takeover in August 2021, which resulted in a severe curtailing of academic freedom and an exodus of Afghans from the country. The crisis mobilised not only civil society, but also the academic world, to an exceptional degree. This translated into a variety of university initiatives and programmes, including protecting atrisk researchers, strengthening human rights education programmes, investing in practice- and advocacy-oriented research, and reinforcing academic interventions in political fora. Using the example of the response to the crisis in Afghanistan, this contribution thus analyses the developing role of universities as human rights actors, in particular their increasing human rights agency and evolving self-understanding, in a progressively challenging political climate.

INTRODUCTION

One of the most newsworthy crises of 2021 was the Taliban takeover in Afghanistan, following the retreat of the US military after a 20-year presence in the country. In 2022, the war in Ukraine, following the Russian invasion of Ukrainian territory on 24 February, has swiftly replaced Afghanistan as the crisis situation dominating global news. Nevertheless, even though it is, by now, largely beyond the attention of the general public – with the exception of the continued closure of girls’ schools by the Taliban, which hit the news on 23 March 2022 – the humanitarian and human rights situation in Afghanistan remains concerning.

In the past year, the crisis in Afghanistan has triggered an exodus of international organisations and NGOs, as well as a movement of refugees out of Afghanistan, after hundreds of thousands of Afghan nationals found themselves at serious risk of losing their lives or liberty, or access to work and education, under a Taliban-led regime.

ABSTRACT

The European Union (EU, the Union) budget for the period 2014–2020 proved insufficient to respond to the massive influx of refugees arriving from Syria in 2015. This deficiency led the European Commission and the Member States (MS) to resort to extraordinary measures, with more flexible and rapid instruments. Among those, the EU trust funds raised attention due to their lack of democratic accountability and financial transparency. The EU Trust Fund for Africa was particularly criticised for financing activities in third countries, which, like in the case of Libya, contributed to worsening the human rights situation for migrants. For the preparation of the 2021–2027 Multiannual Financial Framework, the European Commission had to consider the shortcomings of the previous budget, as well as the lessons of the trust funds experience for the creation of new instruments. A new fund for EU external action was adopted. Due to its legislative nature, the ‘Neighbourhood, Development and International Cooperation Instrument – Global Europe’ (NDICI) contains major democratic safeguards, including provisions ensuring transparency. However, it sets a specific spending target of its financial envelope for migration management , and includes a form of migration conditionality to the external assistance, as well as elements of flexibility previously criticised, which could potentially lead to new human rights violations. This contribution aims at investigating to what extent the EU takes human rights into account in the management of external funds. The first section will try to identify the shortcomings of trust funds, through which the EU has indirectly contributed to human rights violations in third countries such as Libya. The second part of the contribution will address the strengths and weaknesses of the new NDICI-Global Europe fund, and particularly the risk of further potential violations.

INTRODUCTION

Since 2015, several shortcomings in the EU’s external border and migration policies have emerged. Due to new challenges, including increased migration flows, the COVID-19 pandemic and security concerns, the EU has adopted new strategies to protect its external borders. These strategies are inevitably linked to the Union’s budget and funds – one of the primary tools of the EU, contributing to its soft power.

ABSTRACT

The European Court of Human Rights (ECtHR) has long been subject to criticism from certain States Parties for its efforts to micromanage domestic courts in their adjudication of human rights cases. From Interlaken (2010) to Copenhagen (2018), an increasing focus on subsidiarity is evident in declarations from High-Level Conferences on the Future of the ECtHR. Overburdened by repetitive cases, and conscious of questions about its legitimacy, the ECtHR has responded to calls for increased deference to national authorities by adopting a more procedural approach in its jurisprudence. Thus, the ECtHR has begun to vary the intensity of its review, based on the quality of decision-making by both domestic courts and national parliaments. The procedural turn remains controversial, however. There are conflicting opinions, within the literature, on its potential and limits, while dissenting opinions from ECtHR judges indicate that there is a lack of consensus within the ECtHR itself as to how and when it should be applied. Furthermore, its application has been far from consistent. Through an examination of the relevant literature, publications and certain key cases, this contribution first explores the rationale behind the procedural turn. Cited justifications for its adoption are highlighted, and risks in its application are identified. Against this backdrop, the consistency of the ECtHR’s current application of the procedural turn, and the coherence of guidance given to domestic courts on its use, are considered through the analysis of a sample of 30 cases drawn from the ECtHR’s recent jurisprudence on the expulsion of settled migrants under Article 8.

INTRODUCTION

The European Court of Human Rights (ECtHR) has long been subject to criticism from certain States Parties for its alleged micromanagement of human rights cases. In 2013, the adoption of Protocol 15 amended the preamble of the European Convention of Human Rights (ECHR) to include an explicit reference to subsidiarity and the margin of appreciation in its text for the first time. This amendment reflects the increasing focus on the subsidiarity of the ECtHR, seen in the 2012 Brighton Declaration, as well as declarations from other High-Level Conferences on its future, held in Interlaken, Izmir, Brussels and Copenhagen.

ABSTRACT

While the European Convention on Human Rights (ECHR) provides to its States Parties the possibility to lodge applications against other States Parties, so far the European Court of Human Rights (ECtHR) has delivered only a few judgments in such cases. Their execution has proven to be lengthy and incomplete, despite several efforts undertaken by the Committee of Ministers (CoM), supervising this process under Article 46(2) ECHR. The same concerns the few individual cases related to inter-state disputes, such as the group of cases Catan and others v Russia; and cases concerning the military conflict between Armenia and Azerbaijan in the Nagorno-Karabakh region between 1988 and 1994 – Chiragov and others v Armenia and Sargsyan v Azerbaijan.

Therefore, it would be useful to have a closer look at this problem, and to reflect on the adequacy of the reactions of the respondent states and the CoM. Are these judgments ‘executable’? Some of them are relatively recent (Georgia v Russia (I) and Georgia v Russia (II)), but the judgment Cyprus v Turkey has been pending before the CoM since 2001, although some of the aspects of this case have already been closed. This contribution will refer to all the abovementioned judgments, which are under ‘enhanced supervision’ of the CoM, and to the measures taken by the respondent states to execute them, in the context of the proceedings before the CoM on the basis of Article 46(2) ECHR. It will not focus on proceedings before the ECtHR in inter-state cases or individual cases related to inter-state disputes.

INTRODUCTION

Since the entry into force of the European Convention on Human Rights (ECHR) in 1953, the European Commission of Human Rights and the European Court of Human Rights (ECtHR) have dealt with 31 inter-state cases, lodged on the basis of Article 33 ECHR.