“Science in a Pint” – Professor Duncan French discusses environmental law

As part of the “Science in a Pint” festival, Professor Duncan French spoke at an event in a pub in Southwell, Nottingham where he considered the historical origins of international environmental law, its strengths and weaknesses, and the perennial shadow of the State in finding effective means to tackle some of the most intractable global problems. In particular, he considered three alternatives modes of seeking to ameliorate the traditional “top down” approach of international environmental law, namely (i) the example of the Paris Climate Change Agreement (where States voluntarily sought to improve their national efforts and these were then essentially bundled into a legally binding treaty, with the hope of progressive improvement overtime), (ii) the governance of the deep seabed through an international organisation (admittedly made up of States), and (iii) the evolution of acceptance of same-sex marriage as an example of how cultural-societal shifts can happen domestically and overtime affect national consciousnesses around the world. None are perfect means by which to get around the voluntarism of the State, but do indicate a more nuanced debate around sovereignty and international environmental law. A lively debate then ensued!

 

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Excellent Easter Research in Lincoln Law School

 

Over the Easter break, a number of academics from Lincoln Law School presented their research at high-profile conferences, at home and overseas covering such contemporary challenges as corporate failure, Brexit, regulating the use of force, and environmental issues.

Five colleagues presented at the annual conference of the Socio-Legal Studies Association (SLSA), held this year in Bristol. Dr Ngozi Okoye presented a paper on ‘Beyond Box-Ticking: Company Directors’ Skill Profiles and Creating Effective Corporate Governance’. The paper highlighted limitations in the functioning of nomination committees and argued for enhanced evaluation of directors’ soft skills. Dr Amal Ali presented on ‘The Challenge of Brexit: Highlighting Intersectional Invisibilities’ which critiqued the EU’s and the UK’s anti-discrimination laws. It found that while the EU’s anti-discrimination legislation has generally improved the UK’s equality infrastructure, it is important to acknowledge that both legal systems do little to protect the rights of those in the margins and Dr Ali gave a number of recommendations in order for the UK to improve on this post Brexit.

Max Brookman-Byrne presented his research into the language used by the Ministry of Defence in its public reports of air strikes carried out against ISIS. The paper considered the way that the person targeted is presented within each report and the implicit claims made as to their status under international law. Utilizing a law and literature lens, he explored the narratives that are built up in official documentary support of such strikes. Dr Ali Bohm spoke on ‘Responsibility to Protect (R2P) and Colonialism – asking the right questions or responding to the wrong ones?’ It described the non-communication between mainstream and critical scholars, focusing on R2P as an example.  Work critiquing R2P is often ignored in the pro-R2P literature, especially as scholarship is increasingly defined by the need to show impact and policy change.  The paper considered what role there was for critical approaches to R2P, and the extent to which meaningful debate with R2P advocates was possible.

Ben Hudson (photo attached) showcased his recent policy work on access to higher education for forced migrants in the UK. Ben spoke on the legal and practical challenges that higher education institutions face when seeking to develop and implement Sanctuary initiatives, drawing specifically on the recently published Guiding Principles on Sanctuary Scholars in UK Higher Education that he co-authored with the Helena Kennedy Foundation’s Article 26 project: http://article26.hkf.org.uk/_/uploads/Article_26_-_Guiding_Principles.pdf.

Ben Hudson at SLSA 2018 Conference

Professor Duncan French, Head of School, spoke at the annual colloquium of the Wisconsin International Law Journal, in Madison, Wisconsin. His paper explored the 2015 UN Sustainable Development Goals and the systemic obstacles in their implementation, noting especially the limited ecocentric underpinnings of the Goals. In discussing the need for the international community to transition to a normative and governance framework better adapted to the environmental challenges of the Anthropocene – recognising the myriad of planetary concerns, such as climate change, biodiversity loss, ocean pollution – the paper proposed a clearer, and more overt, turning to an ecological Rule of Law.

Professor Matthew Hall, the School’s Director of Research remarked that the level of activity over Easter showed a “strong, and increasingly diverse, research profile in the School, reflecting both a broad array of research topics, and engagement across a range of different academic and policy-connected areas.”

Climate Change Litigation Workshop

The Lincoln Centre for Environmental Law and Justice recently collaborated with Warwick Law School to host a seminar in Warwick on Climate Change Litigation, with contributions from academics, practitioners and activists. Discussing recent developments in such diverse jurisdictions as Australia, South Africa, The Netherlands, UK, United States, and Norway amongst others, the seminar explored the opportunities, emerging strategies and challenges of climate change litigation.

Professor Duncan French and Professor Louis Kotze, Marie Curie fellow at Lincoln Law School, both contributed papers to the seminar.

Professor French noted that “it was a remarkably informative day – how quickly climate change litigation is being picked up in jurisdictions, challenging States and corporations. There is more to do but there is a lot of encouraging developments”.

Visit to China by Professor French and Dr Melling

Professor Duncan French, Head of Lincoln Law School and Dr Graham Melling, Director of LLM Programmes, have recently returned from Guangzhou, southern China on a visit to a number of partner institutions. During their stay they visited the law schools of South China Normal University (SCNU) and South China University of Technology (SCUT). As well as meeting academics and students to talk about opportunities to study at Lincoln, both Professor French and Dr Melling took a range of classes on aspects of international law. Topics included the unilateral declaration of independence of Catalonia, the US withdrawal from the 2015 Paris Agreement on Climate Change, and the legal implications of the Sustainable Development Goals.

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Catalan Independence: A Comment

Catalonia unilaterally declared independence without the permission of Spain. There is a long and historical debate as to when a region of a country can “secede” and become independent. I won’t enter into that history here but simply note that this situation is very different from the Scottish attempt to become independent through a referendum a few years ago. Then, the referendum was authorised by the UK Parliament and if it had been successful, the UK Parliament would have (likely) not stood in Scotland’s way to become independent.

In this case, everything Catalonia has done has been unilateral and against the express wishes of Spain; its sovereign.

In international law, the so-called principle of self-determination says all peoples have the right to self-determination but ordinarily in the case of a region within a country, that is limited to self-government. There is a debate whether if the country prevents self-government, especially through military force, it might have the right to claim independence. Despite some evidence of Spanish police force at the time of the referendum, there is nothing to substantiate this (yet).

The International Court has been very clear that declarations of independence – of themselves – are not prohibited by international law (Kosovo Advisory Opinion 2010). But whether they result in a successful independent State is another matter. That largely depends on recognition – and in this case, countries such as the US and the UK have been very quick to refuse it.

So is Catalonia a State? Well, in the absence of recognition by any other State and clearly still subject to Spanish control, it is quite difficult to see how the fourth Montevideo criteria of “capacity to enter into legal relations with other States” (ie political independence) has been met.

Could things change? Yes.

Spain might eventually agree to Catalan independence – this is highly unlikely. And once Spain does this, other States will follow.

Catalonia and Spain may enter into a civil war – let’s hope not. But eventually some States may as a result recognise Catalonia.

Spain may act so harshly towards Catalans now that international sympathy begins to emerge for Catalonia as a State – this is sometimes referred to as “remedial secession”; that the only way out for Catalonia is independence. Unlikely in this situation.

Ironically, the best way for Spain to keep Catalonia within Spain is to give it even more autonomy. But will it?

Duncan French