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Public law and environmental challenges
Panel formed with individual proposals.
A recent revision of Articles 9 and 41 of the Italian Constitution has given explicit constitutional recognition to environmental protection and its relationship with freedom of economic enterprise. By investigating its scope and distinctive traits, the paper explores to what extent this reform can be framed in the anthropocentric vision underlying the Constitution. Accordingly, the constitutional reform is examined in the context of national and supranational case law, including ECtHR‘s judgments Cordella and Others on Ilva‘s toxic emissions and Di Sarno and Others on waste disposal in the Campania region. From a comparative perspective, the study also seeks to draw a parallel with the relevant foreign jurisprudence, as in the case of the Bundesverfassungsgericht. In view of the current climate change momentum, the analysis ultimately focuses on the issue of striking a balance between the different rights at stake, and attaches constitutional value to the greening phenomenon.
“Sustainability and democracy are closely intertwined (..) Sustainability requires democratic processes that are both sustainable and adaptable“ (www.iass-potsdam.de/en/research). From this perspective the paper analyses the case of the integration of the ESG considerations into investments, a step-by-step process which has led to deeper collaboration between diverse players: international, regional and national, formal and informal. How far has this approach gone? If can “rules“ be identified, what about the governance? The ESG considerations makes the decision-making process more complex but fosters the improvement of investment institutions' internal procedures. How are these actors accountable for their choices? What happens in case of disputes? These are not theoretical issues. Sadly, the war in Ukraine urges actions from different perspectives and the ESG could be one of these. Therefore, the ultimate aim of the paper is to address the ESG framework against the current crisis.
The ongoing climate emergency is a global problem. The need for a common action to overcome it is felt with increasing urgency by the international community. This awareness has often pushed the European legislators to recognize the environment as a fundamental right, and, even where it does not find an express recognition as such, the European Courts have shown that they give it the value of a fundamental right. In this perspective, the Italian Constitution, after an important procedure of constitutional revision, has now provided for the protection of the environment among the principles at the basis of the Italian legal system. The paper aims to highlight the aspects of convergence of the jurisprudence of the European Court of Human Rights and the Italian Constitutional Court to outline the content of the environmental protection and to explore the possible application problems of its express provision in the Italian constitutional text.
A 2018 UNEP study on global environmental crime reports that wildlife crime is a particularly persistent problem in Africa, Asia and Latin America, where all kinds of species – mammals, birdlife, reptiles and amphibians, insects, and plants – are affected. According to the European Commission‘s 2016 Wildlife Trafficking Action Plan, Europe is currently a significant destination market and a hub for wildlife trafficking in transit to other regions and it is also a region from which certain species are sourced for illegal trade. This paper aims to critically compare the legal enforcement mechanisms against wildlife trade in the European Union, China and countries in South East Asia. The paper will evaluate gaps in international law and the case for global treaty to combat illegal wildlife trade, taking acccount of existing initiatives including the End Wildlife Crime campaign for a Protocol on Wildlife Crime to be negotiated under the UN Convention against Transnational Organised Crime.
The world is facing an ecological crisis resulting from the excavation and use of fossil fuels on which our economic system is based. This crisis has been called a “man-made crisis“, but greenhouse gas emissions only started to create a problem for the planet when bourgeoisie came to power. Supported by the humanist background, the natural rights theory recognised humans' fundamental rights and freedoms, protecting bourgeoisie against King‘s absolute power. We call this phenomenon constitutionalism. This dramatic change paved the way for our modern democracy. But it also led us to the crisis we are currently facing. Constitutions shall no longer be a refuge of human activities damaging life on the planet. There shall be no right or freedom that causes death or damage to others. Accordingly, constitutionalism, through high courts, must bear a new role as a legal tool to limit states and companies from exploiting nature in order to confront the climate crisis.
The current geopolitical and environmental energy strategy requires a transition from fossil and nuclear energy to the use of renewable energies. This politically promoted transition takes place through extensive regulations as well as through far-reaching planning and steering measures. In addition to subsidies, self-consumption regulations (Art. 16 EnG) play a key role. This paper examines possibilities and limits of associations for self-consumption (ZEV). Self-consumption is defined as both the simultaneous consumption of self-produced electricity at the place of production by prosumers (Art. 16 EnG) and the transfer of consumption by the ZEV (Art. 17 EnG). A ZEV comes about through the association of neighboring landowners for joint self-consumption and through the participation of end consumers who have a rental or lease relationship with them. The policy objective is the expansion of new renewable energies for the purpose of an environmentally friendly power supply.