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The Finns are, or so it appears from a recent referral to the European Court of Justice: Case C‑674/17.
Man up, Finns! That is the AG’s advice. The Habitats Directive allows of no derogation from the protection of species obligation that does not come up with a satisfactory alternative. Furthermore it must be shown that any derogation does not worsen the conservation status of that species.
Whatever the CJEU decides, the opinion of AG Saugmandsgaard Øe makes for fascinating reading, going to the heart of the conservation problem. As human populations spread, how to secure the preservation of wild species, particularly carnivores?
McMorn (R, on the application of) v Natural England[2015] EWHC 3297 (Admin) – read judgment
Public opinion regarding raptors and pheasant shoots should not influence the authorisation of buzzard control, the Administrative Court has ruled. Any derogations to the EU protection of wild birds should apply equally across wild avian species, irrespective of their popularity.
This was a gamekeeper’s challenge to the refusal by the defendant statutory body (Natural England) to grant him a licence under the Wildlife and Countryside Act 1981 to kill buzzards which he said were destroying such high numbers of game birds as to render his shoot unviable.
At the heart of the claimant’s challenge was his contention that NE treated raptors differently from other wild birds, making it far harder, well-nigh if not quite impossible, for anyone to meet the statutory conditions for the issue of a licence.
He maintained the defendant treated these licence applications differently because of the public controversy which the grant of a licence for the killing of buzzards would engender. This was because of perceived adverse public opinion about the protection of a pheasant shoot. Hence, the decision was based on unjustified inconsistencies in NE’s treatment of raptor and other birds equally protected under the law. Continue reading →
Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 11 June 2013 read judgment
The Divisional Court has now dismissed the claim by Mr Bancoult on behalf of the Chagossian islanders. He had challenged the designation of the waters around the islands as a “no take” Marine Protected Area, i.e. one which could not be fished.
Mr Bancoult said that the decision was flawed (i) by having an improper purpose (it would put paid to the Chagossians’ claims for resettlement); (ii) by inadequate consultation and (iii) by amounting to a breach of an EU obligation to promote the economic and social development of the islands. The Court ruled against all these claims.
The case has, to say the least, quite a back-story. It started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, on which I have posted here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the Foreign Office accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
Many will remember the batch of e-mails hacked in 2009 that caused delight in climate change sceptic circles (see this example from James Delingpole), and considerable embarrassment to UEA; some of it concerned the famous or infamous hockeystick graph (see below) showing temperature change over the last 1000 years.
In the UK and EU, there are a lot of statutes and rules about climate change, and relatively little strategic litigation. Hop over the Pond, and we see exactly the reverse, a reflection of different political dynamics with the hostility of the US Congress to climate change legislation.
It is interesting to look at some of the US cases, not only because they lock horns with one of the big issues of our time, but also because they reflect a common problem the courts face in deciding their role when confronted with science which is, or is said to be, controversial.
We should start with the groundbreaking decision in Massachusetts v. EPA (549 U.S. 497 (2007)). The US Supreme Court held that the US Environmental Protection Agency had a duty to use its existing powers under the Clean Air Act and assess whether greenhouse gas (GHG) emissions from vehicles were a danger to the environment and, if that was the case, to regulate them. In the litigation, and contrary to the opinion of two of its previous general counsels, it had denied that it was under a duty to do so. This judgment was a highly important ruling, as it meant that no new legislation was necessary to get the climate change ball rolling. Thereafter the EPA turned to how it should regulate GHG emissions, as we shall see.
Chandler v. Cape Plc, Court of Appeal, 25 April 2012, read judgment.
This may sound like a rather dreary topic, but the problem is vitally important for the proper reach of environmental and personal injury law. Some may have seen from my post on the Erika disaster the difficult issues which can arise when a multi–national (in that case, Total) does business through a number of corporate entities, particularly where they are domiciled in different countries. But the present case is a good example where liabilities are not confined to the party directly responsible for the injury or disaster. Good thing, too, for this claimant, who stood to gain nothing from his former employer, a company now dissolved, or indeed its insurers.
In the late 1950s and early 1960s Mr Chandler worked for a Cape company, Cape Products, loading bricks. Asbestos was also produced at his workplace, and dust from that part of the works was allowed to blow around the works. Mr Chandler recently contracted asbestosis, and wanted to claim for the admitted negligence of Cape Products. But Cape Products was no more, and there had been excluded from its employers liability insurance any cover for pneumoconiosis. So that led nowhere. Hence this claim against Cape Plc, its parent company, on the basis that Cape Plc had “assumed” responsibility for the health of its subsidiary’s employees.
C-28/09, European Commission v. Austria, 21 December 2011 – read judgment
Many countries in the EU are struggling to comply with its laws about air pollution. The UK is in continuing breach of its nitrogen dioxide emission limit: see my post just before Christmas. But one way a country can try to comply with these laws is by banning or limiting heavy traffic. And that is exactly what Austria did in respect of an important bit of its motorway network; it prohibited lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley. And just before Christmas, it paid the price.
The EU Court told Austria it was infringing EU law, in particular, Articles 28 and 29 of the EC Treaty (now Arts 34 and 35 of TFEU) which are the core provisions protecting free movement of goods. Why, given that it was trying to comply proactively with another requirement of EU law?
A recent guest post from Begonia Filgueira celebrated the move by the Bolivian Parliament to accord rights in law to Nature. It rightly commanded considerable attention but not all readers were ecstatic. So when last week DEFRA came out with a rather different approach to valuing nature in its Natural Environment White Paper – the first in 20 years – it was interesting to see the way that the Environment Department thought things should be done.
Not the Bolivian route, unsurprisingly, but the White Paper raises an entirely different way of valuing nature which we should compare with the idea of granting rights.
Air pollution is particularly high in Bangladesh, the asylum seeker’s country of origin
On 18 December of last year, a judgment was handed down by the cour administrative d’appel à Bordeaux (the appeals court of the administrative court of Bordeaux) which, until quite recently, went under the international radar. In a landmark judgment, the Court ruled that the respondent, an asylum seeker from Bangladesh (‘Mr A’), could not be returned to his country of origin owing to two medical conditions: allergic asthma and sleep apnea. What was remarkable about this judgment was that it was the first time that a French court has taken pollution into account in a decision of this kind. The Court stated:
[Mr A] would be confronted upon arrival in his country of origin […] with a worsening of his respiratory disease because of the atmospheric pollution.
An article published by the Guardian brought the case to the attention of the British media, and the story has since been picked up by a number of national papers. This article will seek to shed light on the judgment, which is only available in French, and the legal circumstances leading to this groundbreaking decision.
On 22 September 2022, the UN Human Rights Committee found that the Australian Government had violated the human rights of various Torres Strait islanders through climate change inaction.
The rights in issue arose under the International Covenant of Civil and Political Rights of 1966, and in particular the right to life (Article 6), the right to be free from arbitrary interference with privacy, family and home (Article 17), the rights of the child (Article 24), and the right of indigenous minorities to enjoy their culture – all of which rights should be respected and ensured to all individuals (Article 2).
California Sea Urchin Commission, et al. v Michael Bean, et al, US District Court, Central District of California (September 18 2015) – read judgment
A Californian court has upheld the protection of marine otters over the interests of commercial fishing.
Sea otters are remarkable marine mammals who live their entire lives at sea, giving birth in the water and clutching their cubs to their bellies as they float in rafts of up to a thousand, holding hands while they sleep to avoid drifting off in the ocean’s currents. But they are not just picturesque; they are essential to the health of the seas. A main component of their diet is the ubiquitous sea urchin, which feeds on kelp. As sea otters have been hunted and killed as by-catch over the centuries, their diminishing numbers have led to the proliferation of the sea urchin population and the consequent disappearance of the kelp forests on the seabed. The damage this does to the marine ecosystem has been inestimable.
This somewhat technical judgment, made on a preliminary application for summary judgment by the fishing industry, therefore marks an important step in the judicial response to marine conservation. Continue reading →
In a recent post on US climate change litigation, I said that, by contrast with the US Courts, there was relatively little such strategic litigation in the UK and the EU.
But that all changes when the US lawyers come over here – exactly the issue in this case. US airlines said to the EU Court that their rights under international aviation law have been infringed by a European Directive on greenhouse gas emissions from airlines. This EU Court Opinion goes right to the heart of how two systems of supra-national law fit together. EU law hits International Law. And, unsurprisingly, an EU lawyer thinks that EU law wins – so far, anyway, before the full EU Court of Justice decides the case.
US Supreme Court : Kiobel et al v. Royal Dutch Petroleum Co et al – Read Judgment
In a long-awaited judgment, the United States Supreme Court has decided unanimously that there was no jurisdiction for a US federal court to hear a claim by a group of Nigerians alleging that the respondents assisted the Nigerian government to kill, rape, beat and arrest individuals who protested against Shell’s environmental practices.
The judgment has already attracted a lot of commentary, from those claiming it is undermines US leadership on human rights to those who argue it is sensible or a mixed bag. The claimants, who resided in the United States, filed suit against the respondents (Dutch, British and Nigerian corporations) in federal court under the Alien Tort Statute (the “ATS”).
Kennedy v. Charity Commission et al, Supreme Court, 26 March 2014 read judgment
In judgments running to 90 pages, the Supreme Court dismissed this appeal by Mr Kennedy, a Times journalist, for access to documents generated by the Charity Commission under the Freedom of Information Act 2000 concerning three inquiries between 2003 and 2005 into the Mariam Appeal. This appeal was George Galloway’s response to the sanctions imposed on Iraq following the first Gulf War, and little Mariam was a leukaemia sufferer. Mr Kennedy’s suspicion, amongst others, was that charitable funds had been used by Galloway for political campaigning.
The Charity Commission had refused the request on the ground that the information was subject to an absolute exemption from disclosure contained in s.32(2) of the FOIA. The Supreme Court (in common with the Court of Appeal) held that the absolute exemption applied and dismissed Mr Kennedy’s request. But the result was a little closer in the SC, with two judges dissenting, essentially on Article 10 grounds.
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the news
This week we have some interesting updates and speculation on the latest twist in the tale of Julian Assange, more commentary on the Justice and Security Bill and on David Anderson QC’s report on UK terrorism law. Across the pond, President Obama had a particularly good week in the courts. Finally, the results are in: the UK’s next Strasbourg judge will be Paul Mahoney.
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US Supreme Court : Kiobel et al v. Royal Dutch Petroleum Co et al 
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