Britain must commit to upholding civil liberties if the EU is to agree on security co-operation after Brexit

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Ermioni Xanthopoulou, University of Hertfordshire

Originally published on the Conversation

The British government has made it clear it wants a new kind of security deal with the European Union after Brexit. In a speech in London on June 6, David Davis, secretary of state for exiting the EU, set out five aims for a new security partnership. He highlighted the need for a “lasting, positive” agreement, “a stable relationship, built on trust” – a relationship that “doesn’t need to be revisited or renegotiated”.

Davis promised that the UK would make appropriate contributions to the costs of programmes that underpin continued cooperation. And he added that the UK “would respect the remit of the European Court of Justice” when participating in EU agencies, without explaining exactly how.

But Davis’s comments came a week after a senior EU official suggested that the UK would not be able to make use of the European Arrest Warrant (EAW) after Brexit – which allows for the speedy extradition of suspects and convicted persons across EU countries. The official said Britain’s continued involvement could jeopardise “the lives and liberty of citizens”.

Part of the reason for this reluctance to allow Britain access to the EAW after Brexit is a question of trust – one of the key requirements for ongoing security cooperation.

European security

The EU framework on security is associated with protecting citizens against terrorism and serious forms of cross-border crime, such as drug trafficking and exploitation of irregular immigration. The narrative of the “War on Terror” after 9/11 radically influenced the concept of European security and was the catalyst for the adoption of counter-terrorism measures – which the UK was very active in helping to formulate.

The goals of European security are achieved by police and judicial corporation, including measures on extradition, intelligence databases, sharing information, and the quick recognition of orders and decisions.

One key example of this cooperation is the European Arrest Warrant, implemented by the UK in the Extradition Act 2003. The procedure is automatic and quick – judicial authorities complete a form and operate within a limited time frame and strict deadlines. A report published in 2013 by the Home Affairs Select Committee of the UK’s decision to join the EAW, said extradition under the process now takes on “average three months”, compared to around 10 months for a non-EU extradition.

As a member state of the EU, the UK has been able to opt in or out of EU-wide measures on criminal justice policy that it liked, which has been called cherry-picking.

But after Brexit, the UK won’t have automatic access to the security corporation framework. As a result, it will default to the inefficient, costly and politicised extradition treaties under international law, that the EAW replaced, unless a security partnership is concluded that will allow the UK access to the EAW scheme.

Police check vehicles on the French/German border in 2015. Hadrian/Shutterstock.com

Mutual trust remains elusive

The law surrounding police cooperation is based on the so-called model of mutual recognition. In contrast to other areas of EU law which require harmonisation, in this area security measures are recognised across member states – even if they are different. May has also used the term “mutual recognition” as a model of the kind of cooperation she wants with the EU post-Brexit.

But, crucially, the key precondition for this mutual recognition is mutual trust – which is what is currently missing in negotiations towards a new security partnership. This is why Davis keeps referring to the “decades of trust … that have existed” and wishes for “a stable relationship built on trust that doesn’t need to be revisited” – as if trust can be a static element. Yet trust requires some common ground to be generated. It requires certainty and consistency of patterns in that the other side will respect the freedom you risk for them.

The uncertainty of the UK’s position in Brexit negotiations does nothing but hurt trust and make security cooperation unlikely. This is because this area of security cooperation is so sensitive to civil liberties and the future protection of such liberties seems quite precarious. An example of this is the refusal, in February, of Irish judges to extradite several people requested by the UK under the EAW due to the uncertainty in relation to the law and their rights in the future UK.

It is not yet certain whether the UK government wishes to retain measures which are protective of rights. They include the EU Charter of Fundamental Rights, the EU victims’ protection framework, and the extensive EU procedural safeguards which act as common minimum standards for defence rights across the EU.

A chance to show willing

On the contrary, the government has repeatedly expressed its wish to retain many of the security measures that the EU offers which limit people’s freedoms, such as the European arrest warrant, Europol, European Criminal Records Information System. It is safe to say that the government is more interested in security than freedom.

The UK should now be doing its best to recover the trust of its EU partners by showing a strong and consistent position that human rights will be protected. To do this, the UK government should demonstrate an eagerness to retain all the EU measures which are protective of civil liberties.

On June 12 and 13, MPs are expected to vote on the 15 Brexit amendments from the Lords, one of which would put the EU Charter of Fundamental Rights directly into UK law. The government argues this is unnecessary, arguing that human rights are already protected in UK by other sources of law. But May is infamous for her hostility towards human rights law – and not retaining the EU Charter would fuel the sense of uncertainty around civil liberties after Brexit.

 

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Presidential and Parliamentary Systems: a Comparison guided by the Principle of Effectiveness

Jonathan Zealander, Politics Student at the Hertfordshire School of Humanities

Government entails many elements, most notably ‘the democratic legitimacy of a system is generally evaluated through the parameters of accountability and representation’ (Reale, 2003, p.18). This essay shall set out why parliamentary systems afford a more effective form of government.

The following essay will analyse Parliamentary and Presidential structures individually, drawing comparisons between the United States of America (US) and the United Kingdom (UK).

Parliamentary systems are characterised by fused powers, under parliamentary structures, as a legislative parliament is elected and the executive powers are derived from elected assembly (Carey, 2008, p.92), spearheaded by the Prime Ministerial position as head of government. The UK’s Parliamentary system remains a constitutional monarchy, however the Prime Minister holds a number of prerogative influences, derivative of monarchical powers. The Prime Minister of the UK carries actions out on behalf of the monarch (Buckley, 2006, p.11), for example, negotiating foreign treaties (Barlett and Everett, 2017, p.3). The monarchy remains largely symbolic, effectively making the British Prime Minister head of state. Additionally the UK is categorised as a Bicameral parliamentary system, meaning that there are two legislative chambers (Strom, 2000, p.287). The upper chamber, the House of Lords are unelected, and the government are typically accountable to the House of Commons. On the other hand, Presidential systems are characterised by a separation of powers. The President serves as head of state, and chief of the executive, however, they are not members of the legislature. The terms of presidential power are fixed, for example US Presidents may serve maximum, two four-year terms. Presidential figureheads are not based on mutual confidence of the Parliament. The US, can impeach presidents under its constitution, and their governing branches encompass numerous strategic constitutional checks and balances. These checks and balances permit each of the three governing branches to stop other branches from particular actions (Gitelson, Dudley, Dubnick, 2001, p.54-55). Significantly, preventing any branch of government’s power becoming too much that resultantly a tyranny of the majority occurs.

 

Effectiveness as Accountability

Accountability forms one principle of effective government, allowing citizens and legislatures to hold executive or governing representatives responsible for sub-standard or illegal actions (Cutler, 2004, p.19). In Presidential democracies, Presidents are elected directly by citizens on a separate ticket to legislative representatives. These elections may occur simultaneously on the same day, or separately (Pérez-Liñán, 2017, p.88) for example US mid-term elections. In the US Presidents are elected to serve as head of the state, government, and commander in chief (WhiteHouse.Gov, n.d.).

Presidential systems hold the executive government more accountable as the electorate therefore have a clearer, directly elected leadership figure, independent of their congressional representatives that they may express satisfaction or displeasure towards. Additionally, although US Presidents can be held to account by the legislative branches of government, it is very uncommon to do so. Impeachment processes can be invoked under Articles I and II of the US constitution. Article I; Section II of the constitution guarantees the US House of Representatives ‘…the sole power of impeachment’. Article II; Section IV further postulates that ‘The President, Vice President and all civic officers of the United States, shall be removed from Office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanours.’ (National Archives, 2017). Critically however, these are immensely serious crimes and thus make an impeachment process unlikely, demonstrating a Presidential systems inability to enforce Presidential accountability therefore, Presidential systems create ineffective governments. Presidential impeachment can only ensue with a majority in the US House of Representatives and a two-thirds supermajority in the House of Senate (Savage, 2017). Consequently, it could be inferred that Presidential systems provide less effective government as despite the executive’s accountability to the legislature, it is a far more theoretical than practical process. US impeachment practices have been invoked against eight separate Presidents.

President’s Trump, Obama, G. Bush, G.W. Bush, and Reagan all had impeachment resolutions fail to pass through Congress’ lower House of Representative Chambers. Presidents Andrew Johnson in 1868 and William J. Clinton, in 1998, were both impeached by majority verdict in the House of Representatives, though they stayed on as President after acquittal by the Senate, completing their tenures in executive charge (CNN, 2017). President Nixon faced impeachment charges for abuses of presidential powers and obstructions of justice (Kutler, 1997, p.xiv), however he resigned from the Presidency prior to a full vote over his impeachment in the House of Representatives (Glass, 2017). The expected outcome was believed to have been a substantial margin of votes in favour of impeachment in the representatives, thus forcing a senate trial.

No President has ever been impeached by the Senate thus ending their presidency, therefore demonstrating a lack of practical accountability. If you cannot remove a President for all crimes, not just extreme ones it is hard to hold them accountable for a large majority of their potential actions.

In comparison, Parliamentary systems hold government executives to account differently. In order to win a Parliament’s control, over half the elected representatives must be willing to support a governments action. This can be achieved in a variety of ways, such as coalition agreements or majority government. There have been numerous minority governments in the UK after a failure by all parties to win an elected majority in the House of Commons, however, these are infrequent in the case of a hung parliament. At present the UK has a minority government, however there is a ‘Confidence and Supply Agreement…’ (Prime Minister’s Office, 2017) in place with the Democratic Unionist Party to tow the government line on key votes of confidence, such as finance bills. Therefore, holding the executive accountable as under parliamentary systems, confidence in the executive is necessitated to form and sustain a government.

The executive branches of a parliamentary government are derivative from the legislature at the choice of the elected Prime Minister (Carey, 2008, p.92), therefore they must be held accountable differently to Presidential government branches. In the UK’s  Westminster parliament a motion of no confidence can be tabled by opposition MP’s or non-ministerial MP’s of the same party, these motions, if passed by a simple majority in the House of Commons, dissolve the current parliament, triggering a general election (Parliament UK, n.d. A  and Hauss, 2006). Moreover, there are no specified reasons as to what no confidence motions cannot be tabled over, in comparison to the US Presidential system, whereby an executive President may only be impeached for high crimes and misdemeanours (National Archives, 2017), thus the executive is overall more accountable throughout Parliamentary systems for greater substantiated reasons.

Ultimately, this displays more effective government in parliamentary systems by virtue of greater accountability. Another method of Prime Ministerial accountability in the UK is Prime Ministers Questions. Westminster Parliament congregates weekly on Wednesday’s at 12pm until 12.30pm. A list of questions are published on the day’s order of business, however speakers wishing to pose the same question are invited by the house’s speaker to ask another, the Prime Minister is thus theoretically unaware of the issues set to be scrutinised (Parliament UK, n.d. B). Effective governance can be measured through accountability, and Presidential systems can hold branches of government accountable, but in systems such as the US, these processes are impractical.

The extreme crimes a President must go through in order to be held accountable, such as treason, leads to scarce implementation. In comparison, Parliamentary systems, may introduce no confidence motions over an array of issues that lead to accountability by virtue of dissolving government. Furthermore, parliamentary scrutiny processes are superior. Subsequently affording parliamentary systems more effective governance.

 

Effectiveness as Governance

One value of an effective government is governance. To understand governance, it is imperative to first differentiate between itself and the term government. Government are institutions that actually govern, whereas governance is the entire process of building a government and coordinating institutions for law-making (Moran, 2011, p.3). If governance is therefore the coordinated process of passing laws, Presidential systems can be seen as ineffective at performing this function. In systems of presidencies, with a separation of powers, there can be a distinct lack of harmony causing inter-governmental discrepancies. Often these therefore lead to issues with governance (Sharma and Sharma, 2007, p.425).

Under a Presidential format, an executive government’s winning party does not automatically control both or either chambers of the legislature, because the President is elected in a separate contest. For example, In 2012 President Obama was re-elected as President of the US with 51% of the vote and a majority of 332 electoral college seats, when only 270 are required to win the presidency. The legislature was compromised of a majority Democratic Senate by a margin of 53 Democrats, 2 Independents and 45 Republicans, and the House of Representatives 201 Democrats compared to 234 Republicans (NBC News, 2018). However, after the conclusion of the 2014 mid-term elections, President Obama’s executive ceased to have Democrat party control in either congressional chamber. They were defeated in the Senate by 54 Republicans to 46 Democrats and the Democrats continued to be the minority party in the House of Representatives by a significant margin of 247 Republicans to 188 Democrats. This is significant as it impacts upon a President’s ability to pass legislation he was mandated by the electorate to pass, without complete control of congressional chambers by his party for support in his policies.

Controlling congress therefore makes the possibility of a President’s politically ideological bills passing more likely, as there are like-minded legislative representatives to help push bills into laws. As a result, ineffective governance is represented throughout presidential systems, as fortunes can contrast mid-way through the presidency, with the election of greater opposition, that become a majority in the legislative. In the US ‘When federal agencies and programmes lack appropriated funding, they must cease operations…’ (Kosar, 2004).

Most notably the US government has shut down on numerous occasions over inter-chamber legislative and legislature-executive differences. During President Ronald Reagan’s two presidential terms the government shut down eight times between 1981-1987. Each previous government shutdown lasted a different period of time and shared disagreements between the legislature and executive in common. An example of the Executive disagreeing with the legislature would be the 1981 shutdown between November 20th and November 23rd. The shutdown lasted three days over President Reagan’s disagreement with both Congressional chambers co-agreed spending bill (FoxNews 2018). There have also been examples of government shutdowns because the legislature has been controlled by two different parties, such as 1986. President Reagan was in agreement with his Republican party controlled Senate over an agreed welfare packet arrangement, however the Democratic party controlled House of Representatives refused to accept the agreement. Between October 16th and October 18th the government was therefore again shut down (FoxNews 2018). This is consequential because if government is shutdown they are not actively performing their duties, congressional chambers are closed, as are the Executive, until settlements are reached.

A government therefore cannot enact its mandated function of governance effectively, if common ground cannot be found to agree upon fundamental policies such as budgets for the upcoming year. In comparison, Parliamentary systems often remain unaffected by parliamentary disharmony, although governance can be effected by MP’s rebelling. For example, Theresa May losing a key parliamentary vote on whether MP’s should have a vote on the final bill to exit the European Union as a result of 12 Conservative MP’s rebelling and voting against their leadership government’s party line (Cooper, 2017). Parliamentary democracies necessitate that a government shall be formed from either the largest party elected to the legislative house or houses, in some cases through informal agreements with minority parties as part of a minority government, or party-coalitions.

With a majority or coalition majority in parliament you are therefore able to pass legislation without being blocked by opposition, enabling you to carry out your elective mandate and fulfil the will of the people more effectively. Therefore in comparison with Presidential systems, whereby government shutdowns occur, due to conflicting interests between an executive’s elected mandate and a legislature’s elected mandate, because they can be nominated on separate manifestos, parliamentary systems are more effective in their ability to govern.

 

Effectiveness as Representativeness

Lastly, representativeness is a minor barrier to effective governance. Representativeness can be defined as the individual members of legislatives, abilities or inabilities to represent their constituents and defend their welfares (Kreppel, 2017, p.121). Presidential cabinets do not provide legislative representation as they are not elected representatives, they are chosen by the President to serve as head of government departments. In the US, they are ratified by the Senate (Encyclopaedia Britannica, 2018, NCC Staff, 2017), and often they have never held legislative seats. Whereas without a separation of powers in Parliamentary systems, a parliament cannot reject cabinet appointments in countries such as the UK because they do not have to ratify them.

This infers better representativeness in the presidential format, as individual legislatures retain the right to vote no against a cabinet member if it is not in the interest of his people. Whereas in parliamentary systems, the choice remains entirely at the expense of the Prime Minister, demonstrating a lack of representativeness, as our individual elected members may become government ministers, because the executive is derivative of the legislature. Resultantly adding executive responsibilities in addition to their representative and legislative capabilities. Thus it could lead to representational failures, as MP’s could be forced to tow government lines when in fact constituents may disagree.

Representativeness can also lead to less accountability in the UK. If there are large majority governments in Parliamentary systems, with a significant mandate to execute the manifesto of the government, holding them to account is virtually impossible. For example in the United Kingdom, Tony Blair and the Labour party won 418 of 659 seats (UK Political Info, n.d.) and consequently became more difficult to defeat in parliamentary votes, relying upon mass Labour MP’s rebelling.

 

Conclusions

In conclusion, throughout this essay, there have been intrinsic links between accountability, governance and representativeness factors and effective government. By applying these factors to presidential and parliamentary systems, via US and UK case studies we can see that the same examples interlink.

The most important provisions for effective government are high accountability with strong governance. High accountability leads to stronger governance, because stronger scrutiny leads to better performance. In Parliamentary systems, the government is derivative of the legislative, providing an effective mandate, forcing them to perform better in fear of no confidence motions.

Accountability for actions, and governance is weaker in a presidential system with a separate powers because it becomes increasingly difficult to hold presidents accountable for their actions, and inter-governmental branches disagreeing are a barrier to effective governance.

Ultimately this essay believes that a governments’ ability to get from point A to B by governing and being held accountable for their actions are more important than increased representativeness.

Without the ability for effective governance, as demonstrated by the US government shutdowns, representativeness is a non-factor because policy cannot be passed. For this reason, Parliamentary systems, such as the UK, offer more effective government.

 

References

Agiesta. J. (2018), CNN Poll: 42% Approve of Trump, Highest in 11 Months, CNN Politics Website [Online], Available at: https://edition.cnn.com/2018/03/26/politics/cnn-poll-trump-approval-rating-rises/index.html [Last accessed: Tuesday 27th March 2018].

Barlett. G., Everett. M., (2017), House of Commons Library, The Royal Prerogative,  Briefing Paper: Number- 03861, London: TSO, p.3.

Buckley. S (2006), The Prime Minister and Cabinet, Chippenham, Wilts, Great Britain, Edinburgh University Press Limited, p.11.

Carey J.M. (2008), Presidential Versus Parliamentary Government, In: Mérnard. C. and Shirley. M.M. (eds), Handbook of New Institutional Economics, Springer, Berlin, Heidelberg, p.92.

CNN (2017), Impeachment Fast Facts, CNN Website [Online], Available at: https://edition.cnn.com/2017/08/29/world/impeachment-fast-facts/index.html [Last accessed: Thursday 28th March 2018].

Cooper. C (2017), Theresa May’s Government Defeated On Key Brexit Legislation, Politico Website [Online], Available at: https://www.politico.eu/article/theresa-mays-government-defeated-on-key-brexit-legislation/ [Last accessed: Thursday 29th March 2018].

Cutler F. (2004), Government Responsibility and Electoral Accountability in Federations, Publius, 34(2), Oxford University Press, p.19

Encyclopaedia Britannica (2018), Gabinet: Government, Encyclopaedia Britannica [Online], Available at: https://www.britannica.com/topic/cabinet-government [Last accessed: Tuesday 27th March 2018].

FoxNews (2018), A Look Back at Every Government Shutdown in US History, FoxNews Website [Online], Available at: http://www.foxnews.com/politics/2018/02/09/look-back-at-every-government-shutdown-in-us-history.html [Last accessed: Thursday 29th March 2018].

Gitelson. A.R., Dudley. R.L., Dubnick. M.J. (2001), American Government, Sixth Edition, Boston, New York, Houghton Mifflin Company, p.54-55.

Hauss. C (2006), Vote of No Confidence, Encyclopaedia Britannica Website [Online], Available at: https://www.britannica.com/topic/vote-of-confidence [Last accessed: Thursday 29th March 2018].

Kosar. K. R. (2004), CRS Report for Congress- Received Through CRS Web: Shutdown of the Federal Government: Causes, Effects, and Process, no place of publication, Government and Finance Division, p.1

Kreppel. A. (2017), Legislatures, In: Caramani. D (eds.), Comparative Politics, Fourth Edition, New York, Oxford University Press, p.121.

Kutler. S (1997), Abuse of Power, New York, The Free Press: A Division of Simon and Schuster inc.

Moran. M (2011), Politics and Governance in the UK, second edition, Basingstoke-Hampshire, Macmillan Publishers Limited, p.3.

National Archives (2017), The Constitution of The United States: A Transcription, Article I: Section II, Article II: Section IV, National Archives [Online], Available at: https://www.archives.gov/founding-docs/constitution-transcript [Last accessed: Tuesday 27th March 2018].

NBC News (2018), Decision 2012: Presidential election results, NBC News [Online], Available at: http://elections.nbcnews.com/ns/politics/2012/all/president/#.WrwIpNPwZsM [Last accessed: Wednesday 28th March 2018].

NCC Staff (2017), The Constitution and the Cabinet Nomination Process, National Constitution Centre: Constitution Daily- Smart Conversation from the National Constitution Centre [Online], Available at: https://constitutioncenter.org/blog/the-constitution-and-the-cabinet-nomination-process [Last accessed: Wednesday 28th March 2018].

Parliament UK. (n.d.) :

  1. Motion of No Confidence (Parliament UK’s Website [Online] Available at: https://www.parliament.uk/site-information/glossary/motion-of-no-confidence/ [Last accessed Wednesday 28th March 2018].
  2. Question Time, Parliament UK’s Website [Online], Available at: http://www.parliament.uk/about/how/business/questions/ [Last accessed: Wednesday 28th March 2018].

Pérez-Liñán. A. (2017), Democracies, In: Caramani. D (eds.), Comparative Politics, Fourth Edition, New York, Oxford University Press, p.88.

Prime Minister’s Office (2017), Confidence and Supply Agreement between the Conservative and Unionist Party and the Democratic Unionist Party, Gov.UK Website [Online], Available at: https://www.gov.uk/government/publications/conservative-and-dup-agreement-and-uk-government-financial-support-for-northern-ireland/agreement-between-the-conservative-and-unionist-party-and-the-democratic-unionist-party-on-support-for-the-government-in-parliament#confidence-and-supply-agreement-in-the-uk-parliament [Last accessed: Thursday 29th March 2018].

Reale. A. (2003), Jean Monnet Programme, Representation of Interests, Participatory Democracy and Lawmaking in the European Union: Which Role and Which Rules for the Social Partners?, Jean Monnet Working Paper 15/03, New York: New York University School of Law.

Sharma. U and Sharma S.K. (2007), Principles and Theory of Political Science, Volume II, Dehli, India, Nice Printing Press, p.425.

Strom. K. (2000), Delegation and Accountability in Parliamentary Documentaries, European Journal of Political Research, 37(no edition), p.287

UK Political Info (n.d.), 1997 General Election Results Summary, UK Political Info Website [Online], Available at http://www.ukpolitical.info/1997.htm [Last accessed: Thursday 28th March 2018].

WhiteHouse.Gov (n.d.), Our Government: The Executive Branch, White House Government Website [Online], Available at: https://www.whitehouse.gov/about-the-white-house/the-executive-branch/ [Last accessed: Tuesday 27th March 2018].

The right to a healthy environment is a fundamental human right

Sharn Kaur Gill, Hertfordshire Law School Student

The importance of ecological conservation to better the quality of human life is indisputable; as a result, the issue of environmental protection and environmental rights have become an exceedingly significant global discussion. Among global protection programs is the debate of the human right to a healthy environment. Although it does not currently feature as a fundamental human right according to the Universal Declaration of Human Rights, the right to a healthy environment has been a catalysis in the protection of the existing rights. This right has been included in the national constitutions of over 90 nations in some form or another. Due to an increase in global awareness and pushes from international human rights courts it will be argued that the right to a healthy environment is a fundamental human right and should be recognized as such.

  1. INTRODUCTION

‘There is no environment ‘out there’ separate from us. The environment is embedded in us. We are as much a part of our surroundings as the trees and birds and fish, the sky, water and rocks.’[1] The idea that we are one with our environment has been the foundation for existence for the indigenous peoples of North America. This concept of environmental whole-ness resonates into ecological studies as ‘ecosystem services’;[2] there are amenities provided to humans from the earth’s natural ecosystem. Direct effect ecosystem services are the easiest to perceive; they include food, clothing, medicines, shelters and natural energy sources.[3] A stunning example of the need for conservation of the environment comes from a small species of flowering plant found on the island of Madagascar, known as Catharanthus roseus or Rosy Periwinkle.[4] This plant provides the basis of the medications we know as Vincristine and Vinblastine;[5] used to treat childhood leukaemia and Hodgkin’s disease respectively.[6]

The importance of ecological conservation to better the quality of human life is indisputable; as result, the issue of environmental protection and environmental rights have become an exceedingly significant global discussion. Among global protection programs is the debate of the human right to a healthy environment. Although it does not currently feature as a fundamental human right according to the Universal Declaration of Human Rights,[7] the right to a healthy environment has been a catalysis in the protection of the existing rights. This right has been included in the national constitutions of over 90 nations in some form or another. Due to an increase in global awareness and pushes from international human rights courts it will be argued that the right to a healthy environment is a fundamental human right and should be recognized as such.

  1. ENVIRONMENTAL RIGHTS AND INTERNATIONAL LAW

The first substantial blip on the radar of international environmental law occurred during the 1972 United Nations Conference on Human Environment (UNCHE) when the Stockholm Declaration was formed.[8] The declaration symbolized the beginning of changes in international policy-making and a much wider global shift towards a green initiative. Environment as a key proponent of human rights was brought to the international forefront through Principle 1 of the Stockholm Declaration:

‘Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations’[9]

 

The explicit connection between fundamental human rights and the preservation of the environment, at an international level, was paramount in starting discussions about the right to a healthy environment.  The significance of imposing the responsibility to protect the future environment, on man, cannot be overlooked; this forces society to take preventative and rehabilitative measures along with the reduction of present destruction of the biosphere. It would be ill-advised to not discuss that the notion of ‘permanent sovereignty’ was reinforced by Principle 21 of the Stockholm Declaration;[10] This principle informs on a State’s sovereign control over its natural wealth and resources, so long as they are acting in the best interests of their citizen and overall global development.[11] Although the principles set out in the declaration were not legally binding they created the parameters in which States could formulate public policy regarding environmental protection and rights. The impact of this declaration can be seen in the creation of United Nations Environment Program – an organ of the United Nations dedicated to the environment.[12]

Perhaps the most impactful result of the UNCHE was the consequent meeting of 172 world nations in Rio at the 1992 United Nations Conference on Environment and Development (UNCED, Earth Summit).[13][14]  During this conference, the Rio Declaration was created to advance and supplement the Stockholm Declaration with advancements in science and technology and incorporating sustainable development.[15] The declaration proclaimed: ‘Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’[16] By acknowledging sustainable development, this declaration brings forward the idea that developing nations are less likely to comply with environmental regulations when they impede the development and progression of a nation. The push for sustainable development accounts for the global protection of the environment for future generations by encouraging states to share knowledge and technologies with one another.[17]

Since the Rio Declaration, there have been significant innovations in the scientific understanding of the environment and an evolution of international environmental laws. These legal changes include states taking the initiative to incorporate policies that govern acceptable regional environmental standards as they comply with the international protocol.[18] A prominent example of this can be seen in the North American Agreement on Environmental Cooperation (NAAEC); this agreement encompasses the environmental and ecological concerns of Canada, Mexico and the United States.[19] Insurance for complying with this agreement is made by potential detrimental economic effects possible from political fallout, including impairment of the North American Free Trade Agreement.[20]

It is evident the international attention has been brought to environmental concerns globally, however no notion of including environment as a fundamental human right appears to be on the United Nations’ strategy, following the Earth Summit.

III. AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS

            The African Charter on Human and Peoples’ Rights (ACHPR, Banjul Charter) was adopted in 1986 as a regulator of human rights as they pertain to the nations of the, then, Organization of African Unity.[21] The Charter identifies and protects the rights of individuals’ as well as peoples’ rights as a whole. Article 24 of the charter provides: ‘All peoples shall have the right to a general satisfactory environment favourable to their development.’[22] This article defines the right to a healthy environment as a human right, subject to the populations within its governance.

The case of Social Economic Rights Action Center and the Center for Economic and Social Rights (SERAC) and another v Nigeria defined the scope and legal interruption of the Banjul Charter,[23] specifically in relation to the right to a satisfactory environment. This case brought to the African Court on Human and People’s Rights (African Court) by two NGO on behalf of the Ogoni peoples;[24] the Ogoniland oil reserves were exploited by the Nigerian government for economic gain at the cost of disproportionate pollution and habitat devastation.[25] These environmental catastrophes resulted in determents in agriculture due to the, now, usable land.[26] The citizens also alleged that they experience negative health effect due to the actions of the government and no preventative or rehabilitative actions were taken to remedy the health complications.[27]  The African Court augmented Article 24 of the ACHPR in this case when stating:

‘[article 24] imposes clear obligations upon a government. It requires the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources.’[28]

 

This expansion on Article 24 clearly shows the that the courts interpret the law to impose responsibility on the state to maintain sustainable development which does not impact the right to life or the right to a healthy environment, of its citizens.

Presently, the ACHPR governs all 55 nation states of the African continent and consequently all of these nations recognize and legally codified the right to a healthy environment as a human right.[29]

  1. INTER-AMERICAN COURT OF HUMAN RIGHTS

A more recent and radical development in environmental law occurred on 7 February 2018, in an Advisory Opinion (AO) released by the Inter-American Court of Human Rights (IACtHR);[30] the AO came as a response to Columbia’s request for an interpretation of the American Convention on Human Rights (ACHR), in March 2016.[31] Although not explicitly stated, the request made by Columbia has undertones pertaining to its quarrel with Nicaragua.[32] Nicaragua plans to develop a possible transnational canal system; the environmental damage the biodiversity loss would be most substantive along the coastal populations of the Caribbean.[33]

In addition to this proclamation, the AO remarked that where transboundary damages where concerned ‘the exercise of jurisdiction arises when the state of origin exercises effective control over the activities carried out that cause harm and consequent violation of human rights.’[34] This transboundary approach forces States to expand their scope for environmental damages and sustainable development from a local regional range to a global range. Additionally, the concept of ‘effective control’ holds States legally accountable for their destructive actions, even if the resultant ecological damage does not occur within its physical boundaries.[35] The application of this ruling would subsequently hold Nicaragua legally accountable for the violation of the fundamental right to a healthy environment.

This AO is the first international court ruling which segregates and defines the right to a healthy environment as its own independent human right.[36] The AO explicitly states that the right to a healthy environment is ‘fundamental to the existence of humanity.’[37] The implications of this decision are significant and far-reaching; decisions made by this court carry a huge weight in the further development of international law. The Center for International Environmental Law’s Carla Garcia Zendejas commented ‘this historic precedent will bolster communist seeking justice not only in Latin American but around the world.’[38]

  1. ENVIRONMENTAL RIGHTS AND ECHR

The European Convention on Human Rights (ECHR) does not explicitly protect the right to a healthy environment, however, there are numerous cases in which rights protected by the ECHR are used as a vehicle for the protection of the environment.[39] An exemplary case of this is Lopez Ostra v Spain, in this case, Mrs Lopez Ostra experience a violation of her right to private life due to the pollution created by a water treatment plant by her home.[40] The Court held that there had been a violation of article 8 of the Convention;[41] this additionally protected Mrs Lopez Ostra’s privilege to a healthy environment.

The United Kingdom being under the jurisdiction of the ECHR does not recognize the right to a healthy environment as a fundamental human right for its citizens.

  1. CONCLUSION

It is abundantly clear that the environmental rights are human rights and should be recognized as such, by all international human rights courts. Judicial pressures from smaller human rights courts and human rights cases involving environmental components represent the ‘foot in the door’ for the right to a healthy environment. With the changing global climate and the clear shift towards environmental protection and awareness, the protection of this right is paramount in progressing science, technology and politics.

 

[1] David, Suzuki, The David Suzuki Reader: A Lifetime of Ideas from a Leading Activist and Thinker’ (2nd edn, Greystone Books Ltd 2014).

[2] Tim Daw and others, ‘Applying ecosystem services concepts to poverty alleviation: the need to disaggregate human wellbeing (2011) Vol 38 EC 370.

[3] Ibid.

[4] Paul V Licciardi, ‘ Plant- derived Medicines: A novel class of immunological adjuvants’ (2011) 11 II 390.

[5] Ibid.

[6] Steven M Rubin and Standwood C Fish ‘Biodiversity Prospecting: Using Innovative contractual Provisons to Foster Ethnobotanical Knowledge, Technology and Conservation’ (1994) IELP.

[7] Neil Parpworth, Constitutional & Administrative Law (9th edn, Oxford 2016).

[8] John McEldowney and Sharon McEldowney, Environmental Law (1st edn, Pearson 2010) 116.

[9] Declaration of the United Nations Conference on the Human Environment (adopted 16 June 1972).

[10] ibid.

[11] UNGA Res 1803 (14 December 1962) Resolutions adopted on the reports of the second committee 15.

[12] David A. Wirth, ‘The Rio Declaration on Environment and Development: Two Steps Forward and One Back or Vice Versa’ (1995) 29 GLR 599.

[13] United Nations, ‘UN conference on Environment and Development (23 May 1997) <http://www.un.org/geninfo/bp/enviro.html&gt; accessed 6 March 2018.

[14] Michael Keating, ‘The Earth Summit’s Agenda for Change’ (1992) EST.

[15] McEldowney (n 8) 115.

[16] Rio Declaration on Environment and Development, UNGA (1992) A/CONF.151/26.

[17] Keating (n 14).

[18] Edith Brown Weiss, ‘The Evolution of International Environmental Law’ (2011) ELC 12.

[19] Commission for Environmental Cooperation, North American Agreement on Environmental Cooperation (1993) < http://www.cec.org/about-us/NAAEC&gt; accessed 3 March 2018.

[20] Weiss (n 18) 14.

[21] Kaniye SA Ebeku, ‘The right to a satisfactory environment and the African Commission’ (2003) 3 AHRLJ 149.

[22] African (Banjul) Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3.

[23] [2001] AHRLR 60 (ACHPR 2001).

[24] Weiss (n 18).

[25] SERAC (n 23).

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] African Union, ‘Member State Profiles’ <https://au.int/en/memberstates&gt; accessed 9 March 2018.

[30] Giovanny Vega-Barbosa and Lorraine Aboagye, ‘Human Rights and the Protection of the Environment: The Advisory Opinion of the Inter-American Court of Human Rights’ (EJIL: Talk! 26 February 2018) <https://www.ejiltalk.org/human-rights-and-the-protection-of-the-environment-the-advisory-opinion-of-the-inter-american-court-of-human-rights/&gt; accessed 7 March 2018.

[31] Ibid.

[32] Monica Feria-Tinta and Simon Milnes, ‘ The rise of environmental law in international dispute resolution: Inter-American Court of Human Rights Issues Landmark Advisory Opinion on environment and human rights’ (EJIL: Talks! 26 Feburary 2018) < https://www.ejiltalk.org/the-rise-of-environmental-law-in-international-dispute-resolution-inter-american-court-of-human-rights-issues-landmark-advisory-opinion-on-environment-and-human-rights/&gt; accessed on 7 March 2018.

[33] Ibid.

[34] Feria-Tinta (n 32).

[35] Ibid.

[36] Monica Feria-Tinta and Simon Milnes, ‘How international law could help victims of environmental degradation’ The Guardian (21 Feburary 2018) <https://www.theguardian.com/commentisfree/2018/feb/21/international-law-cross-border-victims-environment-rulings&gt; accessed 7 March 2018.

[37] Ibid.

[38] ESCR-Net, ‘Inter-American Court Upholds Healthy Environment as Human Right’ (15 Feburary 2018) < https://www.escr-net.org/news/2018/inter-american-court-upholds-healthy-environment-human-right&gt; accessed 10 March 2018.

[39] Parpworth (n 7).

[40] [1994] ECHR 46.

[41] Ibid.

The Law of Studying: Location! Location! Location!

Sharn Kaur Gill, Hertfordshire Law School Student

 

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With the annual flood of coursework and exams looming nearer, we’ve all desperately googled “how to stop procrastinating” and then drag ourselves begrudgingly off to the LRC with hopes a study environment will force focus. It would seem that becoming accustomed to a designated study area would be the best way to learn – WRONG! According to the New York Times, studies show that finding novel places to grind help benefit memory recall and increase your overall grades.

So, if you’re anything like me, you’re now stressing about finding fantastic new places to study. Well, have no fear I’ve done the research for you and come up with the top 5 places on De Havilland Campus to get some serious reviewing done.

#1. Silent Study Rooms in the LRC

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This is one by far the most obvious study space. Not only does that library make you feel like you have to study it also provides all you with infinite resources just steps away, so you can power through any assignment.  I find the best places for me to focus are the silent study rooms on the 1st floor; these rooms have card access entry, which minimizes that amount of traffic moving around you. They also feature individual study carrels as well as individual study rooms so you can really get into the zone. They also have a wall of windows that look out into a courtyard, which is great to help keep from going stir crazy. This is a great location if you’re looking for little or no distractions.

 

#2. Law Court Building Meeting Rooms

 

These rooms are almost always free and a great place to get some collaborative studying happening. They feature power sources and doors which close to block out any distractions. The rooms vary in size, allowing any number of people to study together. They’re excellent for group presentations or just a central location for a study group between classes. They’re significantly less intimidating than the silent study rooms on the LRC but still feature a quiet, contained environment to maximize revision.

 

#3. Empty Classrooms

 

If you can manage to find an open, empty classroom, you’ve hit the jackpot! There’s so much room for activities! Classrooms provide another great space for study groups or even just change of pace for the LRC. The familiarity of the room may make it easier to recall the information from lectures you forgot to pay attention to. This is a great place to study but be aware: you may get kicked out by security.

#4. Above the Weston Auditorium

Although it is a slightly more unconventional study space, the couches and tables are extremely comfortable and the distractions are minimal. A great spot for listening to lectures or reviewing your notes, whether alone or with a mate. Its location makes it easy to get to between classes and the more casual environment is guaranteed to reduce the stress and pressure of studying.

 

#5. Café Moot

Another great location if you are not easily distracted by your environment. The tables are abundant and the large windows make for great people watching (on your study breaks of course). The café also features a wide array of Starbucks drinks to keep you caffeinate enough to power through last-minute coursework or late study sessions. This is also a good place to get in a short study session between classes without the pressure of finding the perfect place in the LRC, eating lunch and making it your next lesson all in an hour.

 

If none of these are tickling your fancy, here are a few honorable mentions:

Café Study

Café Study is located on the ground floor of the LRC and provides a more casual study space with couches and chairs – did I mention that they have food! An ideal location if, like me, you must snack while you study. This space is great for group meetings and again study groups as well as individual study. If you can handle the hustle and bustle of a café without becoming overly distracted than this is the place for you.

 

Club De Havilland

If you’ve given up all hope, I recommend drowning your sorrows at Club De Havilland. (P.S. Also a great location for a lunch beer between study sessions)

 

Happy Studying! And may the odds be forever in your favor!

 

 

 

5 Summer Reads for a Law Student

Sharn Gill

  1. To Kill A Mockingbird by Harper Lee

 

To Kill A Mockingbird is one of those novels often read in secondary school but not truly absorbed. Lee transports her readers to the Depression-era American South and follows the trail of Tom Robinson. The novel compels its reader and forces one to take a critical look at the difference between what is just, and what is fair.

 

  1. Madame Prosecutor by Carla Del Ponte

 

Carla Del Ponte was the UN chief prosecute of the International Criminal Tribunal for the former Yugoslavia and for Rwanda.  Madame Prosecutor takes you behind the scenes and into the brilliant mind of Carla as she navigates the law in order to bring justice to those wronged by genocide and crimes against humanity.

 

  1. How to Argue and Win Every Time: At Home, At Work, In Court, Everywhere, Everyday by Gerry Spence

 

Everyone can agree that some of the best lawyers are those that can argue their point in an indisputable manner. This engaging and informative ‘self-help’ book should be highlighted and marked up by all aspiring lawyers; Spence provides guidelines for communication and the key to formulating a winning argument both in and out of the court room.

 

  1. Letters to a Law Student: A Guide to Studying Law at University by Nicholas McBride

 

This book takes a look behind the curtain of law school in the UK and is an invaluable guide to studying law. Its full of tips and tricks for finals, writing legal essays and just dealing with the ups and downs that come with university. Nicholas has developed a book that really is useful before, during and years after attending law school.

 

  1. Anonymous Lawyer by Jeremy Blachman

 

This blog style novel is a brutal insight into the highest echelons of corporate law. Anonymous Lawyer encompasses the wicked stereotypes of lawyers and serves them in a comical satire of the workplace. A light easy read guaranteed to make you laugh out loud.