The Future of Environmental Law - Enhancing Environmental Legislation. by elsamalta

Acknowledgements ELSA Malta President: Bernice Saliba Director for IFP (Environmental Law) and Human Rights: Laura Aquilina Proposal Paper Leader: Laura Aquilina Proposal Paper Team: Jack Delicata, Luisa Briffa, Mario Mizzi, Christabel Coleiro, Therese Lia, Andrew Padovani, Laura Aquilina. Reviewing: Dr Louise Spiteri Design: Gigi Gatt.

Enhancing the Law

Foreword It was a great pleasure to be invited by ELSA Malta to revise this interesting compendium of papers specifically dedicated to environmental law; which was prepared by a keen group of future colleagues in the legal profession. I sincerely appreciate this effort, and encourage the authors to continue to have the courage to delve into this area of law which still fails to make centre stage in the Maltese quantum. This field of law is generally applied, interpreted and implemented by other professionals rather than by lawyers. This is due to a number of factors, which I do not intend to delve in here. It is definitely rewarding to see that this new generation of lawyers are understanding that environmental law is an important legal instrument which interacts with other legal regimes. Environmental Law, especially on the international scene is increasingly achieving centre stage. I hope that researching this compendium has instilled in the authorsâ&#x20AC;&#x2122; the curiosity to explore, ask questions, think outside the box whilst amassing the necessary tools to provide solutions and improve on the existing; while encouraging the more inquisitive to gain the courage and provide novel solutions. During the course of this research a plethora of legal conundrums and not so common legal visions were delved into. The fundamental human right for a clean and healthy environment in which to live in, as well as the fundamental human right to a clean supply of water were brought to light. What about granting legal personality to land? The hot potato of corporate liability specifically linked to environmental damage and climate action was also juggled. Dulcis in fundum what is the legal standing of NGOs. The topics chosen are diverse and vary from one another, but they have a common thread which stitches them all into one whole - that of involving us all in the better protection and respect of the environment. This goal could be achieved through the adoption of the right legal tools, where certain areas of the environment or participants like NGOs are given a specific legal status complete with rights and obligations. Some 40 years ago the proverbial mustard seed was planted. International environmental law started having its own persona as a separate area of public international law. The Stockholm Conference on the Environment in 1972 conceptualised this vision. Since then interest has steadily increased. Today it is one of the fastest growing areas of international law. The EU followed in these footsteps and has also created a legal basis under its Treaty in order to create a vast and a challenging environmental acquis. The adoption of international environmental Treaties, as well as that of EU Directives and regulations, into our legal system has

also transformed the Maltese environmental legal scene. Such transformation is both palpable and encouraging, but while enormous strides have been made, gaps in the coverage, implementation, and enforcement of the existing laws still leave a number of lacunae. Only last year Malta has adopted a new Environment Protection Act, and set up a new Environment and Resource Authority to cater for the new exigencies and formidable challenges which such a legal regime has brought about. Environment to many is not only the legal parameter governing social operations. To many environment is a passion, a way of life, and a modus vivendi. Passion is not what should dominate but rather, is to be seen as the water and nurturing necessary to ensure that the mustard seed blooms. ELSAâ&#x20AC;&#x2122;s initiative, to participate in legal environmental research, augurs well for the Maltese environmental legal field. The participants have brought forward a very interesting project. It is a reflection of the keen interest and awareness vis-a-vis the development of environmental law. It is well understood that all of us today are but the custodians for the future generations. Given the topics chosen, as well as the passion and dedication with which such studies have been presented, I am sure that this work and the ideas presented will be of great interest to both the practitioner and the academic. Above all, such work will be most beneficial to our environment, especially if such passion continues to be instilled in the minds of our younger generation, who will soon become our future legislators and decision makers.

Dr. Louise Spiteri Environmental Lawyer April 2017

Table of Contents Foreword

Table of Contents

Abstract

Writers

An Introduction

1. Should there be an enforceable human right to a healthy and clean Environment? 10 1.1 Introduction 11 1.2 The International Plane 12 1.3 The European Perspective 15 1.4 The Maltese Local Scenario 18 1.5 Recommendations and Conclusion 20 2. Environmental Democracy 2.1 A pragmatic perspective 2.2 The UNECE Aarhus Convention (1998) 2.4.1 Environmental Education Act 2.5 Participation: The essential Pillar 2.5.1. Amendments to Chapter 549 of the Laws of Malta 2.6 Access to justice: The inspiring Pillar 2.7 The way forward 2.8 Recommendations

24 24 25 27 29 30 31 31 32

3. The Human Right to Water 3.1 Introduction 3.2 Existence of the Right to Water 3.3 The Maltese Perspective 3.4 Recommendations and Proposals 3.5 Concluding Remarks

34 35 36 38 39

4. Climate Change vs. Climate Action 4.1 Introduction 4.2 Causes of Climate Change 4.3 Climate Action on an International Level 4.4 Climate Action on a European Level 4.5 National Initiatives relating to Climate Change 4.6 Case Law relating to Climate Change 4.7 Conclusion and Recommendations 5. Corporate Liability 5.1 Introduction 5.2 The Maltese Situation 5.3 European Legislation 5.4 Corporate Social Responsibility 5.5 Recommendations

40 40 40 41 42 43 45 47 49 49 50 53 54 57 58 58 60 62 63

6. Legal Personality of Land 6.1 An Introduction 6.2 The Local Situation 6.3 Looking Forward 6.4 Recommendations

7. Locus Standi on Environmental Non-Governmental Organisations 7.1 Introduction 7.2 Case Law 7.3 Recommendations 7.4 Conclusion

65 65 67 68 69

Closing Remarks

Bibliography

Abstract After having individually shown interest in the subject of Environmental Law, a group of hard-working, determined and intelligent law students are presenting their research, thoughts and proposals to the public. Many a late night was put into this paper, as we dived deeper into the realm of Environmental Law, tackling various subjects with a keen eye and a curious mind. We encountered emotions of all sorts, be it frustration and excitement, disagreement and satisfaction. Our aim is to delve into topics which we feel are prominent, yet which have not been discussed productively on a national and international scale. The field of Environmental Law is ever-growing, yet is still far from reaching its peak in Maltese Law. For this reason, our writers have researched thoroughly and have drawn up suggestions for improvement. We hope to bring the importance of Environmental Law to the fore and aid the public to understand the different spheres tackled. Subjects such as legal personality of land which has been recognised in New Zealand, has surely never crossed many Maltese citizensâ&#x20AC;&#x2122; minds, as with the legal standing of NGOs, let alone legislating upon the Human Right to Water. Our objective is to develop upon the realities of the topics which we discuss, be it climate change or corporate liability, environmental democracy or human rights, voicing our opinion and using our legal skills to enhance a field of law which deserves more exposure. With regards to the team which worked wonders in a short time frame, I would like to thank Luisa Briffa, Jack Delicata, Christabel Coleiro, Mario Mizzi, Therese Lia and Andrew Padovani for their in-depth research and effective pieces of writing, as well as for their ingenious proposals towards what stands to be a thought-provoking final result. Appreciation must also be shown to Nicole Sciberras Debono, ELSA Maltaâ&#x20AC;&#x2122;s Director for Social Policy and Legal Publications, along with the ELSA Malta National Board for the term 2016/17 for their support in this endeavour, and especially to our dedicated President Bernice Saliba, for assuring us of her help whenever it may be needed and keeping us on our toes with her words of wisdom. Lastly, I would like to extend infinite thanks to our patient reviewer Dr. Louise Spiteri. On behalf of ELSA Malta and the IFP Organising Committee, I hope that you enjoy our proposal paper, follow our thoughts, and appreciate our efforts, and that this paper has served its educational and legal purpose.

Laura Aquilina Director for IFP and Human Rights 8 March 2017

Writers

Laura Aquilina

Jack Delicata

Luisa Briffa

Therese Lia

Christabel Coleiro

Mario Mizzi

An Introduction by Laura Aquilina Principle 1 of the 1972 Stockholm Declaration1 stipulates that: “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” Throughout the years, fundamental human rights have been directly and indirectly applied to safeguard not only humans but also the environment which surrounds and supports our living. So much so, that nowadays this concept has also entered into the debatable realm of climate change as well. ELSA Malta is part of a European Law Students’ Association, where our vision is "A just world in which there is respect for human dignity and cultural diversity”. As an organisation, we strive to incorporate the importance of human rights in our endeavours. The former United Nations Commission on Human Rights and the United Nations Human Rights Council have recognised the interrelation between a safe and healthy environment and the enjoyment of human rights. There has been implied the States’ obligation to ensure environmental protection so as to secure fulfilment of human rights, while access to information and participation are aspects of environmental law which have also gained momentum. The International Focus Programme (IFP)2 aims at raising awareness of a specific theme throughout the ELSA Network over a fixed term. A forum is created where law students and young lawyers can discuss and participate, envisaging aims and achieving results. The Council chooses a versatile and internationally relevant “hot legal topic” with potential for academic discussion and which impacts everyday life. This year, Environmental Law has been introduced to be the focal point of IFP. ELSA is recognising the importance of environmental law by spreading awareness throughout the academic year. As part of this venture, ELSA is internationally celebrating IFP Week between the 2nd and 9th of April 2017 where different national groups are tackling the legal aspect of the environment. This serves to maximise the 1

Declaration of the United Nations Conference on the Human Environment, Preambular para. 1 and Principle 1, reprinted in: 11 I.L.M. 1416 (1972).

'ELSA – The European Law Students' Association | International Focus Programme' (Elsa.org, 2017) <https://elsa.org/international-focus-programme/> accessed 13 March 2017.

general opinion and mindset of law students and young lawyers. This year, the IFP on Environmental Law has two main goals: that of reasserting ELSA’s primary goal of encouraging young lawyers and law students to realise their role in the formation of their society, and also that of bringing attention to a long-neglected, yet essential topic of law. Environmental Law seeks to regulate human activity and to safeguard the environment around us. With this motivation at heart, ELSA Malta is taking environmental law within the Islands a step further by discussing new topics, presenting educational information and further providing proposals so as to use our standpoint to make a substantial difference. Human Rights vis-à-vis the Environment shall be addressed, including the Human Right to Water and incorporating the aspect of Environmental Democracy. Climate Change as opposed to Climate Action has been delved into, along with Corporate Liability in relation to environmental matters. Lastly, the imperative debate on legal standing and legal personality in relation to Environmental NGOs and Land have also been dealt with. The topics which we have thoroughly tackled seek to tease the readers’ mind and provoke thought and debate among Maltese citizens. The Maltese, as pioneers of the Law of the Sea, and as the main proposers that Climate Change is a common concern of humankind, have always carried an intrinsic awareness of environmental matters, and we feel duty-bound to pursue yet another feat. Within the European Union, the Aarhus Convention epitomises the idea of a kaleidoscopic system where three main pillars are enshrined, those being the right to access to environmental information, public participation, and the public’s access to courts or tribunals in relation to environmental matters. Public participation and education increases legitimacy in governance on environmental matters and leads to the development of a better quality of life for the public. Hence, we are exhausting our new-found right to public participation through this, our Environmental Law Proposal Paper. We encourage all readers to embark on a legal and environmental thought process and gnaw at our proposals keenly. In this manner, Malta can take a step forward in the direction of a magnified sphere of Environmental Maltese Law.

1. Should there be an enforceable human right to a healthy and clean Environment? by Therese Lia List of Abbreviations: ECtHR – European Court of Human Rights ICJ – International Court of Justice OHCHR – Office of the United Nations High Commissioner for Human Rights UN – United Nations UNEP – United Nations Environment Programme Table of Cases: 1. International Court of Justice: Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ, 140 (ICJ) 2. European Court of Human Rights: Budayeva and Others v. Russia, App. nos. 15339/02 11673/02 15343/02 20058/02 21166/02, ECHR 2008 Costel Popa v. Romania, App. no. 47558/10, ECHR 2016 Elefteriadis v. Romania, App. no. 38427/05, ECHR 2011 Florea v. Romania, App. no. 37186/03, ECHR 2010 Guerra and Others v. Italy [GC], App. no. 14967/89, ECHR 1998-I Howald Moor and Others v. Switzerland, App. no. 52067/10 41072/11, ECHR 2014 Kolyadenko and Others v. Russia, App. no. 17423/05 20534/05 20678/05 23263/05 24283/05 35673/05, ECHR 2012 L’Erablière asbl v. Belgium, App. no. 49230/07, ECHR 2009 Öneryıldız v. Turkey [GC], App. no. 48939/99, ECHR 2004-XII Özel and Others v. Turkey, ECHR 2015 Papastavrou and Others v. Greece, App. no. 46372/99, ECHR 2003-IV Steel and Morris v. the United Kingdom, App. no. 68416/01, ECHR 2005-II Vilnes and Others v. Norway, App. no. 52806/09 22703/10, ECHR 2013

1.1 Introduction The Intergovernmental Panel on Climate Change (IPCC) is one of the many bodies or institutions to elucidate how the observed and predicted effects of climate change will affect billions of people and the ecosystems, natural resources and physical infrastructure upon which they depend, and cause events threatening human lives and safety. Reported effects of climate change and other environmental issues such as the depletion of the ozone layer include; impacts on ecosystems and natural resources (freshwater, coasts, ocean, food security), as well as impacts on physical infrastructure and human settlements (urban areas, rural areas and settlements).3 These effects transcend the environmental realm as by undermining access to clean water, food, shelter and other key human resources, fundamental human rights such as the right to life, health, water, food, housing and an adequate standard of living are being undermined. It is not the mere environmental effects of increased levels of atmospheric carbon dioxide, and the use of fossil fuels (amongst others) that is impacting human rights however. Even adaptation measures meant to address such effects might adversely impede on the exercise of human rights, with notable examples including hydroelectric and biofuel projects, and resettlement projects. Consequently in 2007, a group of small island states approved the Male’ Declaration, the first intergovernmental statement claiming that ‘climate change has clear and immediate implications for the full enjoyment of human rights.’ This led to the United Nations Human Rights Council4 adopting a series of resolutions linking climate change to a host of impacts on human rights, as well as the UN Framework Convention on Climate Change, stating that ‘Parties should, in all climate change related actions, fully respect human rights’, and the joint statement of 78 UN human rights mandate-holders calling upon states to ‘make sure that human rights are at the core of climate change governance.’5 Several international instruments namely treaties, international resolutions and declarations, have admitted a connection between the protection of human rights and

United Nations Environment Programme (UNEP), Center for International Environmental Law (CIEL), 'UNEP Compendium On Human Rights And The Environment: Selected International Legal Materials And Cases' (2014).

The United Nations Human Rights Council also appointed an independent Expert on human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment.

UNEP, 'Climate Change And Human Rights'.

the environment, including the Rio Declaration on Environment and Development.6 In addition a number of multilateral environmental agreements further recognise the connection between the environment and human health and well-being and include provisions about governmental obligations in this regard. This connection has also been acknowledged in a significant number of court cases, national constitutions and legislation, and international instruments. Despite these steps in the process of ensuring human rights observations, supported by UNEP, OHCHR and the Human Rights Council-appointed Special Rapporteur, mainly the identification of positive, mutually reinforcing links between the two fields, the relationship between human rights and the environment has been much debated over the past few decades. While the United Nations and national governments acknowledge environmental issues and the responses to them can impact human rights, there is less agreement on the corresponding obligations of governments and private actors to address this problem and whether the right to a clean and healthy environment should be enshrined domestically and constitutionally, as well as in international human rights legal texts, with all the ensuing obligations created and implementations/ enforcement mechanisms necessary. The question on whether the right to a clean and healthy environment should be enshrined has been instigated by the 1972 Stockholm Declaration on the Human Environment and the debated implications of enshrining such a right include the following questions - Would enshrining such a right make States aware of their obligations to protect human rights in environmental issues, and raise awareness about the links between the two? What would the effects of creating such a right be, in terms of responsibility and liability and right-holders and duty-bearers? What would the mechanisms of implementation of such a right be? 1.2 The International Plane Prior to the 1970â&#x20AC;&#x2122;s, environmental protection was not in a way connected to the protection of human rights in the international treaties and regulations which were being put into force in order to diminish the consequences of years of pollution and environmental exploitation. Slowly but surely however a healthy and clean environment, upon which human beings depend for resources, was recognised as an essential requisite for the protection of fundamental human rights. This came as an

This emphasises the need to integrate environment and development in order to achieve sustainable development and allow for a healthy and productive life in harmony with nature.

effect of significant events such as the Bhopal gas tragedy of 1984 and the 1986 Chernobyl nuclear disaster. The first formal recognition of man’s right to a clean and healthy environment came in the Stockholm Declaration, a global eco-summit in 1972, in which it was stated that ‘Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights’. The actual Declaration granted man 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. Presently the right to a healthy and clean environment forms part of Third-generation rights and is generally recognised as part of international law. There are a number of human rights charters and conventions namely the African Charter on Human and Peoples’ Rights, the Aarhus Convention and several national Constitutions containing a clear pronunciation of the human right to a clean and healthy environment. The right to a healthy environment is not however found in pioneering human rights documents such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), or the International Covenant on Economic, Social, and Cultural Rights (1966).7 The United Nations has clearly acknowledged both the link between human rights violations and the degraded environment, as well as how enshrining the right to a clean and healthy environment comes into play in alleviating both. In a report of the United Nations World Commission on Environment and Development, entitled ‘Our Common Future’ it was said that all human beings have the fundamental right to an environment adequate for their health and well-being.8 Klaus Toepfer, the Executive 7

This could arguably be because society's awareness of the magnitude, pace, and adverse consequences of environmental degradation was not sufficiently advanced during the era when these agreements were drafted to warrant the inclusion of ecological concerns. (Source: David R. Boyd, 'The Constitutional Right To A Healthy Environment' [2012] Environment Science and Policy for Sustainable Development)

This report, also known as the Brundtland Report of the year 1987 established that “States shall conserve and use the environment and natural resources for the benefit of present and future generations.” Moreover, this report provides a number of obligations which States should fulfil ranging from the conservation and the sustainable use of the environment, the establishment of environmental standards and the monitoring and prior environmental assessment of proposed activities.

Director of the United Nations Environment Programme, explained this approach in his statement to the 57th Statement of the Commission on Human Rights (2001), claiming Human rights cannot be secured in a degraded or polluted environment. The fundamental right to life is threatened by soil degradation and deforestation and by exposures to toxic chemicals, hazardous wastes and contaminated drinking water. Environmental conditions clearly help to determine the extent to which people enjoy their basic rights to life, health, adequate food and housing, and traditional livelihood and culture. It is time to recognise that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well.9 The linkage between human rights and the environment has been discussed through a few global tribunals and decision-making bodies competent to hear cases involving the human rights and the environment connection. In the Gabčíkovo-Nagymaros Project (Hungary v. Slovakia) 10 , the issue concerned the balance between environmental advancement and the protection of the environment, as well as the Budapest Treaty between Hungary and Czechoslovakia which placed an obligation on the countries to provide electric power, improve navigation and eliminate flooding along the River Danube. For the first time, the ICJ was faced with a dispute regarding the conflict between the need for economic development and that for environmental protection. The ICJ, whilst referring to the needs of present and future generations, said ‘this need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.’ Regional human rights agreements acknowledging the right to a healthy environment have been ratified by more than 130 nations throughout Europe, Asia, the Americas, the Caribbean, Africa, and the Middle East. The Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, the African Commission on Human and Peoples Rights, the European Court of Human Rights, and the European Committee on Social Rights have all delivered judgements or decisions in cases regarding this right.

Human Rights, Health And Environmental Protection: Linkages In Law And Practice A Background Paper for the WHO. Gabčíkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ, 140 (ICJ).

Furthermore, the right to a healthy environment has been included in more than 90 national constitutions, which has instigated a remarkable impact globally through stronger environmental laws and landmark national court decisions.11 As of 2012, 177 of the world's 193 UN member nations recognise this right through their constitution, environmental legislation, court decisions, or ratification of an international agreement.12

Figure 1: Nations recognising the right to a healthy environment in constitutions, laws, or international agreements 1.3 The European Perspective

Though the European Court of Human Rights, which is the supranational Court based on the European Convention on Human Rights, to which the 47 Council of Europe members are signatories, does not specifically incorporate the right to a healthy environment, the ECtHR has developed its jurisprudence in environmental matters. In 11

The Constitutional Right to a Healthy Environment, David R. Boyd.

Even among the holdouts, some subnational governments recognize the right to a healthy environment, including six American states, five Canadian provinces or territories, and a growing number of cities. Portugal (in 1976) and Spain (1978) were the first countries to include the right to a healthy environment in their constitutions. Since the mid-1970s, 92 countries have granted constitutional status to this right.

the early years of the Convention any individual seeking to have their right to the environment protected under the European Convention, the ECtHR would have dismissed the claim on the basis of ratione materiae since no such right is proclaimed in the Convention nor in the Protocols, but as time went by this was not an unsurmountable obstacle for the Court which has still indirectly protected the human right to environment through its judicial activism. 13 It has done this because the exertion of certain Convention rights would be threatened by environmental harm and exposure to environmental risks. Through its jurisprudence, the ECtHR seems to suggest that states have positive and negative implications when it comes to human rights and the environment. The ECtHR has indirectly protected environmental rights by linking environmental risks such as dangerous industrial activities, exposure to nuclear radiation and natural disasters to a violation of the right to life (Article 2 of the Convention). In Öneryıldız v. Turkey, 14 the Court held that there had been a violation of Article 2 of the Convention under its substantive limb, on account of the lack of appropriate steps to prevent the accidental death of nine of the applicant’s close relatives, as well as a violation of Article 2 of the Convention under its procedural limb, on account of the lack of adequate protection by law safeguarding the right to life.15 Similarly in Budayeva and Others v. Russia,16 the Court held that there had been a violation of Article 2 of the Convention under its substantial limb, on account of the Russian authorities’ failure to protect the life of the first applicant’s husband, and, the applicants and the residents of Tyrnauz from mudslides which devastated their town in July 2000.17 There had indeed been no justification for the authorities’ failure to implement land-planning and emergency relief policies in the hazardous area of Tyrnauz concerning the foreseeable risk to the lives of its residents. The Court also 13

Daniel García San José, 'Environmental Protection And The European Convention On Human Rights' (Council of Europe Publishing 2005)

Öneryıldız v. Turkey [GC], App. no. 48939/99

This is because a methane explosion occurred at the tip in April 1993 and the refuse erupting from the pile of waste engulfed more than ten houses situated below it, including the one belonging to the applicant who lost nine close relatives.

Budayeva and Others v. Russia, App. nos. 15339/02 11673/02 15343/02 20058/02 21166/02

In this case eight people were killed in Russia as a result of a mudslide, and consequently the applicants sustained physical injuries, psychological trauma and loss of property. The applicants alleged in particular that the Russian Authorities had failed to mitigate the consequences of the mudslide and to carry out a judicial enquiry into the disaster. The question of Russia’s responsibility for the accident in Tyrnauz had indeed never as such been investigated or examined by any judicial or administrative authority.

held that there had been a violation of Article 2 of the Convention under its procedural limb, on account of the lack of an adequate judicial enquiry into the disaster.18 Environmental rights have also cropped up in the realm of other rights including the Prohibition of inhuman or degrading treatment (See: Florea v. Romania 19 and Elefteriadis v. Romania20 in which the issue was passive smoking in detention), Right to respect for private and family life and home (In Guerra and Others v. Italy,21 the Court held that there had been a violation of Article 8 of the Convention, due to the fact that severe environmental pollution could affect individual’s well-being and prevent them from enjoying their homes in such a way to affect their private and family life adversely, and due to the fact that the Italian State had not fulfilled its obligation under Article 8), and Protection of property (Article 1 of Protocol No. 1 to the Convention); in Papastavrou and Others v. Greece,22 the Court found a violation of Article 1 of Protocol No.1 due to a lack of reasonable balance between the public interest and the requirement of the applicant’s rights. It considered in particular that the authorities were wrong to have ordered the reforestation measure without first assessing how the situation had evolved since 1934, amongst others. The Court has clarified the present state obligations in relation to up keeping human rights standards through environmental changes in L’Erablière asbl v. Belgium,23 Howald Moor and Others v. Switzerland,24 amongst others. These State obligations include; 1. Access to information: In Vilnes and Others v. Norway,25 the Court held that there had been a violation of Article 8 of the Convention, on account of the failure of the Norwegian authorities to ensure that the applicants received

Similarly in the case of Özel and Others v. Turkey, failure to conduct an investigation in order to determine the responsibilities and the circumstances in which the buildings collapsed, resulted in the violation of Article 2 by the Turkish authorities had not acted promptly in determining the responsibilities and circumstances of the collapsed buildings causing the deaths of the applicants’ family members.

Florea v. Romania, App. no. 37186/03.

Elefteriadis v. Romania, App. no. 38427/05.

Guerra and Others v. Italy [GC], App. no. 14967/89.

Papastavrou and Others v. Greece, App. no. 46372/99.

L’Erablière asbl v. Belgium, App. no. 49230/07.

Howald Moor and Others v. Switzerland, App. no. 52067/10 41072/11.

Vilnes and Others v. Norway, App. no. 52806/09 22703/10.

essential information enabling them to assess the risks to their health and lives resulting from the use of rapid decompression tables. 2. Right to an effective remedy: In Kolyadenko and Others v. Russia, 26 a violation of Article 13 of the Convention was pronounced by the Court. This was because of the lack of judicial response and effective remedies the applicants were provided with, after having had their lives at risk and their properties destroyed due to the authorities’ failure to maintain the river channel. 3. Freedom of expression: In Steel and Morris v. the United Kingdom,27 the Court found a violation of Article 10 in light of the fact that the applicant’s campaign regarding environmental and social issues was denounced defamatory by the UK Government, which prohibited its publication. 4. Freedom of assembly and association; In Costel Popa v. Romania, 28 the Court found a violation of Article 11 of the Convention, claiming that the Romanian authorities’ refusal to register an environmental association was not guided by any pressing social need, and was thus disproportionate.29 1.4 The Maltese Local Scenario

Within the local scenario, environmental rights are not constitutional rights, and are not enforceable. The Constitution simply acknowledges the right to landscape (the word ‘environment’ is not mentioned in the Constitution) and since this is pertained in Chapter 2 of the Constitution, as per Article 21, such a right may not be enforceable.30 This article is seemingly contradictory as if it was true that such rights are of essence to the governance of the country they would have been properly safeguarded by granting the individual a possibility of seeking and acquiring a remedy for their violation. Whilst the Maltese Constitution permits the enforceability of other human

Kolyadenko and Others v. Russia, App. no. 17423/05 20534/05 20678/05 23263/05 24283/05 35673/05.

Steel and Morris v. the United Kingdom, App. no. 68416/01.

Costel Popa v. Romania, App. no. 47558/10.

European Court of Human Rights, 'Environment And The European Convention On Human Rights (Factsheet - Environment And The ECHR)' (2016).

ibid, Article 21: ‘The provisions of this Chapter shall not be enforceable in any court, but the principles therein contained are nevertheless fundamental to the governance of the country and it shall be the aim of the State to apply these principles in making laws’.

rights in a Court of law as soon as they are breached, environmental rights are not treated as such. Despite the fact that the Environment Protection Act caters for an out of Court settlement in environmental matters, this is only applicable in criminal proceedings against people accused of breaching environmental laws. In fact, having such an environmental right enforceable in a Court of Law is presently a loophole. Furthermore Article 9 of the Maltese Constitution simply focuses on landscape and development, which, at the time of the drafting of the 1964 Constitution, was a major concern. Clearly environmental issues go much further than just the natural environment. Albeit certain laws touching the environmental sphere were enacted in the subsequent chapter, the Constitution still largely remains silent on the issue. In early 2017, the document â&#x20AC;&#x2DC;A Better Quality of Lifeâ&#x20AC;&#x2122; was proposed by the Nationalist Party, and this puts forward 16 key focus areas and 171 green proposals, mapping out a plan as far as 2050. The most popular suggestion in this document was in fact a promise to enshrine environmental protection in the Constitution, which was seen as the most crucial step necessary for environmental protection.31 This is because the proper right to a clean and healthy environment there needs to be an enforcement mechanism to make these rights enforceable in a court of law. For the environment to be truly preserved and safeguarded when the State grants the possibility to each and every person having an interest in the environment to appear before a Court of Law and make an environmental claim. This action is not merely to be supported by the Government but by an alliance of the Government, the business sector, non-governmental organisations, local communities, the academic community and all citizens. Despite the environmentally related legislation has been enacted in Malta which has been enacted aiming to diminish the effects of environmental degradation and aiming for a sustainable environment, this may not suffice to protect the environment, which is of a right in itself and also inherently linked to other fundamental rights.

Allied Ltd, 'What Do Environmentalists Make Of The PN's Green Plan?' (Times of Malta, 2017) <http://www.timesofmalta.com/articles/view/20170129/local/what-do-environmentalists-make-ofthe-pns-green-plan.637861> accessed 8 March 2017.

1.5 Recommendations and Conclusion

Evidently the world is facing several environmental-related problems, and as John Knoxâ&#x20AC;&#x2122;s study depicted, environmental degradation is harming and impeding on fundamental rights such as the right to health, the right to food and water and even the right to self-determination. This imposes certain obligations on the state and other non-state actors; 1. Although enacting environmentally-friendly legislation is important, this will not suffice as with the growing interdependence between the protection of human rights and the environment, domestically enshrining the human right to a clean and healthy environment constitutionally is arguably one of the few effective ways that state exploitation of the environment can be diminished. Such a right would not simply be acknowledged on paper but would be a vehicle to grant a proper and effect mechanism enabling any individual or group concerned to contest any action, development or plan affecting the environment. This means that apart from being properly recognised and safeguarded constitutionally, environmental rights also need to be made enforceable in a court of law, as only in such a manner such rights can be truly and properly safeguarded. On the other hand incorporating such rights in the Second Chapter of the Constitution would be insufficient as the right-holders would still be unable to seek redress and remedy in case of violation of such rights. Granting the possibility of enforcing positive rights in a Court of law would mean that the State would be more scrutinised and challenged on the basis of its interventions in connection with such rights. Creating such a mechanism to safeguard and uphold such rights would make it easier for society at large to recognise the true importance of the environmental protection.32 Enshrining such a right would also bring about stronger environmental laws and policies, improved implementation and enforcement, greater citizen participation in environmental decision-making, increased accountability, a reduction in environmental injustices, a level playing field with social and economic rights and better environmental performance.

Christina Marie Grima Tabone, 'The Possibility Of Enforcing Environmental Rights As ThirdGeneration Rights In Malta' (Faculty of Laws, University of Malta 2015).

For environmental rights to be made enforceable in a Court of law, they first need to be properly defined and recognised constitutionally, as that would be the proper basis on which one would contend. Thus such a right must be worded differently in Article 9 which currently reads “The State shall safeguard the landscape and the historical and artistic patrimony of the Nation” so that the environment is protected more holistically and not simply against over-development, which is merely one of the several pressing issues causing environmental degradation. When it comes to global decision makers related to the fields of human rights, namely the European Court of Human Rights, what the Council of Europe could do to further its progress in its cognisance of environmental issues, is to create a strategy plan identifying the major challenges for environmental rights, priority areas and actions for meeting those challenges and the working methods to deliver the strategy.33 2. As the Committee on Economic, Social and Cultural Rights and the United Nations Human Rights Commission in Resolution 2003/71 states, States should ‘take all necessary measures to protect the legitimate exercise of everyone’s human rights when promoting environmental protection and sustainable development.’ In fact, there should be obligations on the part of the state in order to supplement the constitutionally enshrined right to a healthy and clean environment, namely the obligation to protect the environment and take measures to stop its exploitation by adopting a legal framework specifically aimed and targeted at protecting the environment and striking a good balance between activities that might cause environmental degradation and the right to have a clean, safe and sustainable environment. These obligations take the form of: a. Procedural obligations – which ensure that the affected public is adequately informed about the causes and effects of environmental degradation and the measures undertaken to mitigate such degradations, adequately involved in public decisions regarding the environment, and given access to administrative, judicial and other remedies when rights are violated, and such remedies are not impeded on.

This could be similar to the Council of Europe Strategy for the Rights of the Child (2016-2012)

b. Substantive obligations – meaning the obligations of states to protect their citizens from violations of human rights from environmental degradation or environmental issues, or even measures taken to counteract such issues. States should seek to find an appropriate balance between environmental protection for present and future generations and economic development, considering human rights with utmost regard. States also have unique obligations with respect to certain groups, including women, children and indigenous people. Furthermore, states should ground their actions on the Brundtland Report which provides a number of obligations which States should fulfil ranging from the conservation and the sustainable use of the environment, the establishment of environmental standards and the monitoring and prior environmental assessment of proposed activities. As stated previously, it is of utmost importance that states work in collaboration with non-state actors including non-governmental organisations, commercial entities as well as other associations in order to deliver such obligations. Private actors should be obliged by law to address the human rights implications of environmental degradation and should refer to the UN Guiding Principles on Business and Human Rights to ascertain that they respect human rights and the environment in all their activities. In conclusion, whilst state obligations in regard to human rights and the environment, do not entail the strict prohibition of economic activities which may lead to environmental degradation, striking a balance between environmental protection, human rights issues, issues of societal importance and issues of economic development is a necessary requisite for both present and future generations. And so, the state must make it a must to take all effective measures to do so, and not simply acknowledge this on paper. President Marie Louise Coleiro Preca during the commemoration day of the fortieth anniversary of Malta becoming a Republic appealed to the people to defend the right to remain in contact with the natural environment. Whilst affirming that the Maltese environment changed radically in the past forty years, with individuals confined to the built environment, President Coleiro Preca stated “in this environment, it has become difficult to find internal peace, and be able to enjoy nature”, maintaining “I appeal to us all to defend the right to remain in contact with the natural environment that sustains us.” Finally, as Christina Marie Grima Tabone’s dissertation ‘The Possibility of Enforcing Environmental Rights as Third-Generation Rights in Malta’ states:

it is time that the Maltese Constitution not only recognizes the right to a clean and healthy environment as being a fundamental human right, but also grants the possibility of enforcing such right in a Court of Law in view of preserving and safeguarding the environment and humanity.34

Christina Marie Grima Tabone, 'The Possibility Of Enforcing Environmental Rights As ThirdGeneration Rights In Malta' (Faculty of Laws, University of Malta 2015).

2. Environmental Democracy

by Mario Mizzi 2.1 A pragmatic perspective

Environmental democracy exists when the public is able to freely access information on the environment, participate actively in decision-making of environmental issues, and demand enforcement of environmental laws or compensation for damage.35 The three pillars of environmental democracy, as established in the Aarhus Convention,36 are: i) ii) iii)

Transparency (i.e. proactive access to information), Active participation by the public in environmental decisions Access to justice in exclusively environmental law issues.

The term reflects an increasing recognition that environmental matters must be decided by all those affected by their consequences, not just by governments and industrial sectors. It captures the principle of equal rights for all those in the environment debate37. In Malta, the term ‘environmental democracy’ is uncommon. The term is neither mentioned in legal academia nor in public policy fora. However, the sporadic use of the term does not automatically entail Malta as a non-environmentally democratic State. In this section of this proposal paper, I will explain what environmental democracy is whilst simultaneously assess how Malta is faring accordingly. I will also give suggestions on how Environmental Democracy can be the holistic approach to all environmental issues in Malta.

See: M. Mason, Environmental Democracy: A Contextual Approach (Palgrave Macmillan 1999)

UNECE convention signed in Aarhus in 1998.

Susan Hazen, ‘Environmental Democracy’, <http://www.ourplanet.com/imgversn/86/hazen.html>, accessed 3 March 2017.

2.2 The UNECE Aarhus Convention (1998) The elements of Environmental Democracy were first mentioned in Article 10 of the Rio Deceleration (1992). It was only in the Aarhus Convention when a whole exercise was dedicated solely to the elements of Environmental Democracy. The â&#x20AC;&#x2DC;Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Mattersâ&#x20AC;&#x2122; (known as the Aarhus Convention) was signed in Aarhus (Denmark) on the 25th June 1998 by the United Nations Economic Commission for Europe. The EU is a signatory of this convention and Malta ratified it on 23rd April 2002. The Aarhus Convention recognises that each individual has the right to information (transparency), to be involved in decision-making and to justice in environmental matters. The first pillar of environmental democracy, transparency, is mainly concerned with access to information. It is the making of information available and accessible to any person in an affordable, effective and timely manner without proving a legal or other interest. The type of environmental information to be made available includes information on environmental quality, environmental impacts on health and factors that influence them. Moreover there has to be legislation, policy and advice on how to obtain information. Public Participation is the second pillar of an Environmental Democracy. According to the Aarhus Convention public participation consists of opportunities for early and effective public participation in decision-making. The members of the public should be informed about their opportunities to participate in decision-making processes at an early stage. Public Participation has to be transparent and in a consultative manner with adequate opportunities for members of the public to express their views. The third pillar is access to justice. This means that when a person who considers that her/his request for information on environmental matters or her/his right for participation has been unreasonably refused, s/he has access to a review procedure before a court of law or other independent and impartial body to challenge such a decision, act or omission by the public authority in question. 2.3 The Environmental Democratic Index The Environmental Democratic Index is a statistic showing how much a State is Environmentally Democratic. Basically, the assessment is an analysis on how much the three pillars of environmental democracy are present in a State.

As of February 2017, the 11 countries at the top of this index38 are: RANK

COUNTRY

SCORE

Lithuania

2.39

Latvia

2.31

Unites States

2.16

South Africa

2.16

United Kingdom

2.14

Hungary

2.12

Bulgaria

2.10

Russia

2.06

Panama

2.02

Colombia

1.99

Ireland

1.93

Environmental Democracy is exclusively concerned with the three pillars: transparency (access to information on environmental matters), participation and access to justice. The other elements of a healthy democracy do not play a part in determining a Stateâ&#x20AC;&#x2122;s state of environmental democracy. This lack of correlation between democracy and environmental democracy is evident in this table. Although Russia has a poor track record on its state of democracy, it fares better than Ireland on environmental democratic rights (despite the fact that Ireland is a much healthier democracy than Russia). The Environmental Democratic Index has so far assessed 70 countries. Malta is not one of them. Since the Environmental Democratic Index only takes into consideration the laws and regulations (and not the implementation), one can determine the environmental democratic status of Malta by an analysis through its laws. 2.4 Transparency: the basic pillar

This basic pillar of Environmental Democracy is transparency (through proactive access of information). The first pillar of the Aarhus Convention is implemented under EU law by Directive 90/313/EEC, which was replaced by Directive 2003/4/EC on public access to environmental information. Malta transposed Directive 2003/4/EC granting 38

Statistic provided by: http://www.environmentaldemocracyindex.org . Last accessed: 6 March 2017.

the public the right of access to environmental information via the Freedom of Access to Information on the Environment Regulations (LN 116/2005) and was subsequently amended by LN 298/12. So, Malta fares well in this democratic right. The problem is, that since there is lack of environmental education, the public cannot understand the information it has access to. Therefore, although the law provides for access to information about environmental issues, this access is not that much worthy considering that the public is illiterate to the majority of this information. The environmental democratic right of ‘access to information’ is only sufficed if the State gives access to the information and the public can understand and digest the information. Overall, the laws in Malta embrace this environmental democratic right. However, if the public is not well educated, then the information would not be doing its objective because the people would not understand it. This is the first major deficiency I observed in Malta’s Environmental Democracy. I suggest that Parliament promulgates an Environmental Education Act. This Environmental Education Act, which this proposal paper is proposing for the Malta, is based on the USA’s National Environmental Education Act of 199039. The USA National Environmental Education Act, through the Environmental Protection Agency, provides resources to local education institutions and not-for-profit educational and environmental organisations in order to support and improve awareness of environmental problems. 2.4.1 Environmental Education Act The need for environmental education in Malta does not only stem from an absurdly high level of public ignorance on environmental issues but also due to the lack of an environmental conscience. The majority of the Maltese population knows about environmental issues, but either has incorrect information or lacks the will to be environmentally conscientious. Since this is a legal proposal paper, I will be mainly focusing on the legal provisions that should find place in this proposed act. The title of the proposed act is ‘Environmental Education Act’. One of the first articles should contain that it is an environmental democratic right that the person needs to have sufficient education on the environment in order to be able to participate in Environmental Democracy.

National Environmental Education Act 1990 (USA).

The purpose of this act is to provide resources to local education institutions and notfor-profit educational and environmental organisations in order to support and improve awareness of environmental problems. The Act should provide that a National Environmental Education Advisory Council (NEEAC) is created in the Environmental Department. We propose that the council be composed of an Administrator and ten members (five chosen by the government and the others by the eNGOs). The term of the council shall be for 4 years. The Administrator of the National Environmental Education Advisory Council (NEEAC) shall establish an Office of Environmental Education. The office may carry out programs to improve understanding of the natural environment, and the relationships between humans and their environment, including the global aspects of environmental problems. The programs may be carried out in consultation and coordination with other governmental departments. The Office of Environmental Education will have the functions to train educational professionals in the development and delivery of environmental education. Special emphasis should be placed on developing environmental education programs, workshops, and training tools that are portable and can be broadly disseminated. This paper proposes that the Ministry responsible for the Environment Department provides the skeleton financing of the agency. However, it is proposed that the agency is allowed to negotiate sponsorships. Therefore companies, which in their exercise of Corporate Social Responsibly want to help in environmental education, can do so easily and effectively through the agency. Together with the Environmental NGOs the proposed NEEAC would create a National Environment Curriculum reviewable every 4 years to ensure a streamlined educational plan without repetitions by overlapping campaigns. The Office of Environmental Education would also establish the environmental education campaigns. Then the NGO would provide the necessary information and volunteering work force and the NEEAC would provide the funds (either through the government or through a sponsorship). Practically this law will complement the various efforts already done by our educators who give environmental information both through the study of books as well as through practical activities such as separation of waste, planting of trees etc,

2.5 Participation: The essential Pillar The second pillar of an Environmental Democracy is public participation. This is established in Article 6 of the Aarhus Convention. The Convention provides a framework for the public to take part in decisions relating to the environment at an early stage, and thus making the project, development or plan more likely to be acceptable, more sustainable and less damaging to the environment. Public Participation does not simply mean an exercise of direct democracy. A referendum on an environmental issue is the most extreme way of conducting public participation. However, a referendum is costly, time-wise uneconomical, and creates room for politicising the issue. Public participation is provided for at EU level through the Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC. Malta transposed the provisions of this Directive into Maltese law through various legal notices.40 For environmental democracy, the best way of having public participation is through effective public consultations. “In Malta participation exists, in particular on the level of public consultation. However, the assessment of the participative procedures revealed potential for further improvement” 41. This room for improvement could be tackled through amendments to the newly formed ERA (which was the product of the 40

The Legal notices are: The Plans and Programmes (Public Participation) Regulations, 2006 (LN 74/06); Integrated Pollution Prevention and Control (IPPC) Regulations, 2002 (LN 234/02), as amended by LN 230/04; Freedom of Access to Information on the Environment Regulations, 2005 (LN 116/05) as amended by LN 298/12; Control of Major Accident Hazard Regulations, 2003 (LN 37/03), as amended by LN 179/15; Environmental Impact Assessment Regulations, 2007 (LN 114/07); European Pollutant Release and Transfer Register Reporting Obligations Regulations, 2007 (LN 152/2007); and Strategic Environmental Assessment Regulations, 2010 (LN 497/10).

Nathalia Kisliakova, ‘Further Improvement of the Implementation of the Aarhus Convention in Malta: A Review’ <https://www.um.edu.mt/library/oar/bitstream/handle/123456789/9025/Further%20Improvement% 20of%20the%20Implementation%20of%20the%20Aahus%20convention%20in%20Malta.pdf?seq uence=1&isAllowed=y > (last accessed 6 March 2017.

MEPA demerger). This paper will not go into the merits on whether the demerger was beneficial or not for Environmental Democracy. The demerger is now virtually a fait accompli. This paper can only give suggestions on how environmental democracy could be applied to the ERA. Therefore, this paper proposes that Chapter 549 of the Laws of Malta is amended to become the main promoter of Environmental Democracy in Malta through the ERA. 2.5.1. Amendments to Chapter 549 of the Laws of Malta From the outset it has to highlighted that the Environment Protection Act has a specific provision which obliges the Government â&#x20AC;&#x153;to disseminate information on the environment and to facilitate the participation of the public in decisions that affect the environment;â&#x20AC;? (Art 4) Hence the right of public participation is there, and it is also found in other legislation issued under the same Act, especially under the subsidiary legislation regulating the process of environment impact assessments.42 Perhaps if an amendment is made either in the Act or under the EIA regulations, this should specify better how the process of public participation should take place. At times, especially when an EIA process is taking place, there are instances where the public feels aggrieved because he/she was not given enough time to participate and voice out his/her concerns. At times there is also a bit of confusion when the public should be looped in to participate. So a better analysis of this right will definitely show that a law is needed to regulate better the procedural process of this important right. Furthermore, despite the fact that both the Government and also the authorities are always ready to listen to the public, especially in environmental matters, it would also be opportune to specify for example that NGOs will have the right to demand public consultations on environmental matters, even if the topic is not currently controversial. For example, although the issue of land reclamation has not yet been officially kickstarted (because there has been no application for land reclamation yet), the eNGOs should have the option of demanding a public consultation on the topic. Also more public consultations should be organised with co-operation with the Local Councils. Article 32 of Chapter 549 dedicated to the set up of a fund, should be amended to include a proviso where money is allocated to councils in order to help in the promotion of public consultations. This due to the fact that the government body most close to the citizen is the local council. Therefore local councils can be extremely beneficial in encouraging public participation in consultations.

Environmental Impact Assessment Regulations - LN 114 of 2007 as further amended.

Part II of Chapter 549 should also introduce the term Environmental Democracy, so that like this it will appear black on white that the Environment Authority is there to work with others in a democratic way in order to attain the best results for the protection and enhancement of the Maltese environment. 2.6 Access to justice: The inspiring Pillar Access to justice is the inspiring pillar because it is not enough that the public is educated and actively participating. It is the knowing that justice will be done that inspires the public to adhere to the law. Under Art 9 of the Aarhus Convention the public can request legal review of alleged violations of the Convention and national laws relating to the environment. Access to justice procedures must be fair, equitable, timely and not prohibitively expensive. Adequate and effective remedies should be provided, and there should be access to injunctive relief where appropriate. Finally, information on administrative and judicial review procedures must be disseminated to the public. In Malta, the public has the right to appeal against a decision of the Environment and Resource Authority and also of the Planning Authority in front of the Environment and Planning Review Tribunal established by means of the Environment and Planning Review Tribunal Act of 2016 (Act V of 2016). Moreover, there can even be an appeal from the Planning Review Tribunal in front of the Court of Appeal, on points of law only. Therefore considering that the requirements of the Aarhus Convention Article 9 paragraph 3 are well implemented43 and considering that Malta is effectively adhering to the Aarhus Convention (with regards to this environmental democratic right) I see no major deficiencies thus no need for proposals with regards to this pillar. 2.7 The way forward The biggest threat to Environmental Democracy is the lack of interest of the people. Environmental Democracy is not yet â&#x20AC;&#x2DC;mainstreamedâ&#x20AC;&#x2122; because the Western World seems to be afraid of the democratisation of environmental decisions. The recent political developments in the USA do not bode well for Environmental Democracy.

ibid.

Actions 44 taken recently are showing that some perspectives hold Environmental Democracy as both irrelevant and even ‘intrusive’.45 Jeremy Wates, Secretary General of the European Environmental Bureau, expressed his regret at the ECJ judgements Cases C-404/12 P and C-405/12 P. He said: Today´s ECJ judgements raise serious questions about what it means for the EU to be a party to an international treaty. We remain of the view that the relevant provision of the Aarhus Convention is sufficiently precise to rule out any limitation of acts that may be challenged to ‘measures of individual scope‘, and that the EU’s Aarhus Regulation is not in compliance with the Aarhus Convention. We therefore intend to see that this is pursued through the Aarhus Convention Compliance Committee and Meeting of the Parties. Malta’s state of environmental democracy is comparable to a diamond in the rough. Malta’s population is interested in environmental issues and willingly participated in various protests/mass activities with regards to environment protection. The turnout for a referendum on an environmental issue was also high. However, this enthusiasm needs to be curated through education (hence the proposal of an Environmental Education Act) and through pro-active participation in the right fora (hence the need for the Amendments to Chap. 549 of the Laws of Malta or any other relevant subsidiary legislation). 2.8 Recommendations ELSA Malta proposes: 1. Chapter 549 of the Laws of Malta or any other relevant subsidiary legislation is amended to reflect Environmental Democracy. These amendments should include: a. Recognising Environmental Democracy b. Introducing a new article on the procedure to be adopted for public participation. And also public consultations regarding environmental issues which must be organised more frequently and more close to the affected citizens, have to be legally recognised.

An example of such actions is the Executive Order by the 45 President of the USA on the Dakota Pipeline.

Peter Davies ‘Public Participation, the Aarhus Convention, and the European Community’ in Human Rights in Natural Resource Development: Public Participation in the Sustainable Development of Mining and Energy Resources (PringPrint, Oxford Scholarship Online 2002).

The promulgation of a new act titled: Environmental Education Act. a. The act establishes a National Environmental Education Advisory Council b. Through Environmental Education, the citizens are adequately prepared to actively participate in Environmental Democracy.

3. The Human Right to Water by Laura Aquilina

"Access to safe water is a fundamental human need and therefore a basic human right.â&#x20AC;? - Kofi Annan, United Nations Secretary General 3.1 Introduction Although the Maltese Constitution, the European Convention on Human Rights, the EU Charter of Fundamental Rights and the United Nations Charter of Human Rights all reflect the absolute basic fundamental human rights for Maltese citizens, the right to water is nowhere to be found. What do we understand by the human right to water? Is it a right that can stand alone? Case law presents the right to water along with the right to sanitation as part of the right to life or health.46 In India, although the right to water is not expressly protected by the Constitution, the Courts have interpreted the right to life47 to include the right to safe and sufficient water, also reasoning that domestic use of water overrides the commercial use of water, as seen in Delhi Water Supply v State of Haryana. The Human Rights to Water and Sanitation were first recognised by the UN in 2010 as part of binding international law, where all are entitled access to sufficient and safe water. It was felt that States have an obligation to ensure that such a right is incorporated into a countryâ&#x20AC;&#x2122;s law and policy. According to the International Covenant on Economic, Social and Cultural Rights of 1966, State parties should deliberately take a step in the direction of realising this human right, ensuring that there is no discrimination. Thus the state is the primary duty-bearer and it has been held that it should not be private companies which provide the service. And if the water service is privatised, the state must adopt a regulatory framework to monitor all service providers. In the EU, 1,884,790 EU citizens signed the petition of the European Federation of Public Service Unions, and others, asking

See, e.g. the Coca-Cola cases in India; Beja and Others vs. Premier of the Western Cape and Others, The High Court Of South Africa, 29 April 2011.

Constitution of India, Article 21.

that EU institutions pass legislation to recognise water as a human right, declaring water to be a public good and not a commodity.48 In Malta’s case, the Water Services Corporation is a public entity and it is responsible for the complete drinking and waste water cycle in the Maltese Islands. It is maintained that the State must guarantee access to all. However, the EU Commission has not yet developed legislation guaranteeing the human right to water and sanitation to all. 3.2 Existence of the Right to Water The right to water is mentioned in the Convention on the Elimination of all Forms of Discrimination Against Women, and also in Article 24 of the Convention on the Rights of the Child (CRC) where “Children have the right to … safe drinking water”. A clear definition of the Human Right to Water was provided in 2002, asserting access to water as a condition for the enjoyment of an adequate standard of living, and therefore a human right: “The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses”, UN Committee on Economic, Social and Cultural Rights.49 3.2.1 The European Union Perspective The Maltese Civil Code indicates the right of watercourse, and the Constitution also protects laws “vesting in the Government of Malta the ownership of any underground minerals, water or antiquities.” Water is clearly of immense importance. However, without an international body enforcing the human right to water, this right relies upon the activity of national institutions and courts to ensure its implementation. France has adopted plenty of provisions guaranteeing the right to water.50 Nevertheless, as of yet, it has not pointedly introduced the right to drinking water and sanitation as a human right in its legislation. The Slovenian Parliament has adopted an amendment to its Constitution ensuring access to drinkable water as a fundamental human right for all citizens, declaring that their water is a public good managed by the state and “not a market commodity”

'Changing Conceptions Of Rights To Water | Water' (Water.ox.ac.uk, 2017) <http://www.water.ox.ac.uk/changing-conceptions-of-rights-to-water/> accessed 7 March 2017.

'General Comments No 15 « Rights To Water And Sanitation' (Righttowater.info) <http://www.righttowater.info/progress-so-far/general-comments-2/> accessed 7 March 2017.

France Henri Smets and France Philippe Boucheix, 'France' (Rampedre.net, 2014) <http://www.rampedre.net/implementation/territories/national/europe/france#en> accessed 7 March 2017.

seeking to be commercialised.51 Slovenia is the first European Union country to add this right to its Constitution, although other countries worldwide had already done so. The South African Constitution, in Article 27, declares that “Everyone has the right to … sufficient food and water”. According to RAMPEDRE (a platform which seeks to stimulate the monitoring, information, awareness and mobilisation on the human right to water), until the end of 2014, ten African countries had recognised the human right to water in their national water act, inter alia, Algeria, Madagascar and Tanzania.52 It must be kept in mind that according to the Stockholm International Water Institute, twenty litres a day per person is not sufficient to provide an adequate standard of living. 3.2.2 A Comparative Perspective United States legislation mentions water repeatedly, but ceases to mention water as a human right.53 The only Code which boldly mentions it is the California Water Code declaring that “every human being has the right to safe, clean, affordable, and accessible water.” However, the Code later states that the Government is not dutybound to provide the water. This oxymoron seems to reflect our reality. The United Nations has recognised the Human Right to Water, and yet our legislation holds back from expressly guaranteeing it. The pivot of positive human rights is that they seek to ensure that the Government provides a basic standard of living to all, through law and regulation. The right to water belongs here. The inclusion of the right to safe and clean water, and also its provision is an absolute government obligation. Therefore, the human right to water exists with absolute certainty, but is it being fulfilled? And more importantly in the Maltese context, is it guaranteed for our future? 3.3 The Maltese Perspective There are many Maltese Regulations and Orders dealing with water services, supply and control, however there is nevertheless no implicit and express right to water, and this goes to show that citizens are not guaranteed what should be the basic and fundamental of all human rights, the right to water. Although lack of water supply and 51

'Slovenia Adds Water To Constitution As Fundamental Right For All' (the Guardian, 2016) <https://www.theguardian.com/environment/2016/nov/18/slovenia-adds-water-to-constitution-asfundamental-right-for-all> accessed 7 March 2017.

Belgium Florence Higuet and Belgium Florence Higuet, 'The Right To Water And The African Legislations' (Rampedre.net, 2014) <http://www.rampedre.net/implementation/territories/national/africa/laws#en> accessed 7 March 2017.

'Is Water A Human Right?' (NRDC, 2016) <https://www.nrdc.org/onearth/water-human-right> accessed 7 March 2017.

sanitation is a reality which few Maltese citizens are exposed to it is nevertheless a problem which may rise up and strike us in the near future. We must distinguish between water as a commodity and water as a means of survival. ELSA Malta encourages citizens to take action by contributing to and abiding by national and EU projects and regulations tackling water schemes, aiding in taking the first step to recognising Water as a Human Right. ELSA Malta commends SOS Malta on attaining funding from the European Commission and the Minority Rights Group International to push forward with the Water for Life – Malta Project, creating awareness about water supply and sanitation being an ‘entry point’ to fight poverty, and also leading to an understanding that society’s actions may impact other people within this globalised world. The right to water may nudge at transboundary effects given that water supplies naturally overlap borders. Therefore, States are obliged not to negatively effect the enjoyment of such a right with regards to other states. This may be reflected through climate change and global warming, as our actions may be harming the rest of the world. A parallel problem may arise in Malta as we are extracting too much ground water and also polluting it, ruining the natural aquifers and environment, possibly even resulting to lack of fresh water in the future, thereby depriving us and future generations of the human right to water. 3.3.1 The Ground Water Crisis The Subhash Kumar v. State of Bihar case draws our attention to the right to enjoy pollution-free water. This instantly brings to the floor a discussion on Malta’s groundwater conundrum. It has been found that only 23 cubic meters of groundwater are available to be extracted sustainably, but is estimated that 34 million cubic meters of water are instead being drawn up.54 This exploitation of ground water lowers the quality of what remains. Groundwater may be seen as a sheet of freshwater atop seawater, stored within the depth of the porous rocks underlying our Islands. Rainwater replenishes the groundwater, but the process is slow, and takes decades. One must also keep in mind the scarcity of rain water in Malta, and that if a fixed amount of rainwater is making its way back into the ground water aquifers, it is only that amount which is sustainably available for extraction, and extracting more enables seawater to replace the freshwater. This results in our remaining groundwater increasing in its salinity, and this is a reality several Maltese aquifers are currently facing.

Geoffrey Saliba, 'Threats To Groundwater' (Times of Malta, 2017) <http://www.timesofmalta.com/articles/view/20140218/opinion/Threats-to-groundwater.507282> accessed 11 March 2017.

Over-extraction, coupled with ground water polluted by cancerous nitrates in fertilisers is an increased threat to such a water source. Rainwater, on coming into contact with such nitrates, dissolves them and carries them into the aquifers. A European Commission Report shows that 87% of Malta’s groundwater bodies contain such pollutants. 55 We must keep in mind that groundwater forms 45% of the tap water provided by the Water Services Corporation, which resorts to filtering and mixing reverse osmosis water with ground water, simply to ensure that it is in line with EU standards. EU Life+, on Investigating Water, found that “between excessive nitrates and excessive salinity due to over-extraction, the water produced by 90% of Malta’s aquifers no longer meets the Maltese and EU standards for safe drinking water.”56 3.4 Recommendations and Proposals ELSA Malta recommends monitoring the drawing up of groundwater and imposing fines if breaches occur, ensuring that Malta’s ground water does not remain threatened. ELSA Malta proposes that a plan is drawn up with the aim of restoring Malta’s ground water. The plan should include the limit of groundwater which can be drawn up yearly, calculating the amount of rain which will seep into the rock so as to have our groundwater restored by the next 20 years or so. Encourages that the impact of human activity on the status of surface and ground water be assessed, ensuring that Maltese water becomes of not only of a ‘good’ status but of a ‘better’ status for the future, by implementing related Directives and seeing that measures are kept and observed. The domestic or industrial sector should also be monitored to avoid nitrate pollution in ground water. Fines should also be resorted to so as to combat this increasing problem. ELSA Malta further recommends restoring Malta’s groundwater to a good status by balancing extraction with recharge, proposing that there is a reduction in water demand not by depriving citizens of water, but by making consumption more efficient rather than wasteful. Geoffrey Saliba in an article in the Times of Malta suggested that “If just half the population in Malta saved two litres of water every day, the country would reduce its water demand by 142 million litres of water every year through these simple, cheap and easily implemented water saving solutions, which would also slash utility bills.” These solutions include using 6 litres, possibly even 4.5 litres, of toilet 55 56

ibid. 'Groundwater Status' (Investinginwater.org) <http://www.investinginwater.org/Water+Scarcity/Groundwater+Status/590> accessed 11 March 2017.

water to flush away waste, instead of 15 litres. Having showers and water-basins giving out less volumes of water yet offering the same pressure and sensation, being restrictive but maintaining good flow. Saliba feels that applying these tactics to hotel and businesses in the industrial sector could decrease water-waste significantly.57 ELSA Malta also recognises the necessity of strengthening and implementing the human right to water, believing that, on an international level, a clean water supply can be a starting point to eradicating any form of poverty and malnutrition left haunting parts of the Earth. ELSA Malta invites the European Commission to work towards implementing the human right to water (as has been recognised by the UN) as part of EU legislation, and ensuring that water is a public service available to all. 3.5 Concluding Remarks ELSA Malta strongly recommends that people are educated on the matter of environmental law in relation to the right to water and urges that the theme of Water be at the top of Maltaâ&#x20AC;&#x2122;s agenda. We call upon the State to take it upon itself to ensure that Water is regarded as a Human Right within legislative acts, and is provided and safeguarded along with other human rights. Although water is sometimes taken forgranted in Malta, we must recognise the scarcity of rain, the pollution of water, and the excess of ground water that is being drawn up, and that in the future water may not be guaranteed. It is therefore important to legislate upon this human right, guaranteeing water for the population, and also ensuring that water is safeguarded in Malta as it is all in all a need and not a luxury.

Allied Ltd, 'Threats To Groundwater' (Times of Malta, 2014) <http://www.timesofmalta.com/articles/view/20140218/opinion/Threats-to-groundwater.507282> accessed 7 March 2017.

4. Climate Change vs. Climate Action by Christabel Coleiro 4.1 Introduction

“All across the world, in every kind of environment and region known to man, increasingly dangerous weather patterns and devastating storms are abruptly putting an end to the long-running debate over whether or not climate change is real. Not only is it real, it's here, and its effects are giving rise to a frighteningly new global phenomenon: the man-made natural disaster.”58 It was Barack Obama, one of the most influential people that the world has known, who expressed this powerful statement back in 2006. Over ten years later, the effects of climate change have aggravated and will continue to get worse if care of our planet is not taken. Thankfully, a lot of efforts are now being made in order to try and control the issue of climate change and such strive can be seen as taking place on both an international and a national level. This is what will be discussed in this section as we will be going through what the causes of climate change are and also what is being done in order to prevent the aggravation of such change. Firstly, however, the difference between climate change and climate action should be noted. Climate change is the result of humans’ wrongdoings and their abuse of the environment and natural resources. Climate action, on the other hand, is what we are doing in order to combat this negative climatic behaviour. Therefore, in other words one may say that we are currently searching to find adequate ways and means to combat the climate damage which is mainly occurring due to previous reckless actions, especially through the industrialisation boom. 4.2 Causes of Climate Change

This was stated by Barack Obama when speaking about ‘Energy Independence and Safety of our Planet’ (2006).

Before going into what our generation and previous ones are doing / have done to help with this issue at hand, it is of great importance to highlight what actually causes climate change. Climate change is a topic that is often brought up. However, how many of us actually know enough about it to understand the immense need for a climate action plan that our planet craves? The change in temperature and climate are all a result of humans’ actions; mainly the burning of fossil fuels, the destruction of forests, the cultivation of livestock, the production and use of fertilisers which contain nitrogen and also fluorinated gases. All of these aid in adding to the amount of greenhouse gases in the atmosphere which in turn worsen the greenhouse effect and global warming. In fact, the Climate Action Act found under Chapter 543 of the Laws of Malta, climate change is described as being “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods”.59 This Act also states that the term ‘greenhouse gases’ “means those gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infrared radiation”.60 4.3 Climate Action on an International Level Starting off with actions regarding climate change which are carried out internationally, one can easily point out the ‘United Nations Framework Convention on Climate Change’ (UNFCCC). This was an international treaty based on the environment and which was discussed in 1992 during the Earth Summit taking place in Rio de Janeiro. Such framework was then later on promulgated in 1994. It should be noted that the main objective of this convention was actually the “stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”61 The parties to this treaty meet annually and they do so in order to evaluate the progress that is made in order to try and improve the situation that our planet has found itself in due to our carelessness. The general provisions of UNFCCC have been translated into more practical provisions by means of the Kyoto Protocol which was finalised in 1997. This Protocol binds its parties by setting up certain targets related to emission reduction. At first, thirty-seven countries along with the European Community decided to help in reducing Greenhouse Gas (GHG) emissions to around five percent against the levels registered in 1990. This percentage was later on changed and the parties agreed to try and 59

Climate Action Act, 2015 Article 2.

UNFCCC, 1992 s.2

reduce GHG emissions to an average of eighteen percent less than the measures in 1990. This amount is expected to be reached within a period of eight years, and we therefore have until the year 2020 to make it happen. It should be noted that the list of Parties to this agreement has changed since the first commitment period. Malta, first signed to this international treaty back in 1998 and the emissions limit set to be reached by our island is that of twenty percent less than how it was before. Under the Kyoto Protocol, States must meet their objectives mainly through national measures. This framework however, also enlists other methods through which each State may reach and meet its targets. In fact, it does so through three market-based mechanisms which are: The International Emissions Trading Mechanism, the Clean Development Mechanism and also what is known as Joint Implementation. These three help not only to ensure that the targets relating to emissions are reached but also to motivate sustainable development through technology transfer as well as investment. One cannot speak about climate action without mentioning the recently adopted Paris Agreement. This Agreement also builds upon the UNFCCC and its main aims are to have its parties come together with one common goal â&#x20AC;&#x201C; that is, to take on great and effective efforts in order to fight climate change and also, to adapt to its impacts. In fact, it is actually stated in the agreement itself that the States party to it must acknowledge â&#x20AC;&#x153;that climate change is a common concern of humankindâ&#x20AC;? and that they should, when taking actions to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equality.62 This therefore, shows that additional effort is being made as years go by and it in turn gives us hope that future generations will get to enjoy our planet and its resources. 4.4 Climate Action on a European Level Climate action can also be seen as being one of the main priorities within the European Union. The EU was one of the entities which had agreed to the second commitment of the Kyoto Protocol which was mentioned previously. In fact, the main targets of the EU for 2020 are to, as stated before, reduce greenhouse emissions by approximately twenty percent as compared with those of 1990, to have twenty percent of energy

'Paris Agreement' (2015).

intake from renewable energy and also to increase by twenty percent energy efficiency. The EU has also established its primary emission targets for 2030 which must be lessened by at least forty percent when compared to the percentage registered for 1990, and by 2030 the EU is also targeting to have at least twenty-seven percent of energy use coming from renewable energy and lastly to have an increase of not less than twenty-seven percent in energy efficiency. Moreover, the EU has a long term goal and that is that by 2050 emissions are to be cut off by eighty to ninety percent and this would be done as a result of the collective effort shown by the Member States. These targets of the EU relating to the climate can be seen as being backed up with financial support as well as regulation. It is the EU’s ‘Emissions Trading System’ which helps with the diminishing of GHG emissions at the lowest cost possible. It is not only this, however, which helps to encourage Member States in taking climate action. Parties of the EU are expected to make use of renewable sources in order to reach the goals of the EU. These renewable energy sources include wind and solar powers as well as biomass, to name a few. Industries are required to better the energy efficiency of most, if not all, of the equipment and appliances that they use. Also, producers of vehicles (particularly of cars and vans) are obliged to try and lessen the release of carbon dioxide (CO2) from such means of transportation. Adapting to climate change is not an easy task. The European Commission has therefore come up with an ‘EU Adaptation Strategy’ back in 2013 which consisted of a number of strategies such as using less water, building flood defences and developing crops which can survive in drought situations. Such approaches were indeed welcomed by the Member States, including Malta in which measures have been taken in order to try and lesson flooding in certain areas. It should be noted that the European Commission always encourages its parties to implement national schemes which may help when it comes to climate action. Effort from individual countries is always desirable as even the slightest action may bring about great changes to the better. 4.5 National Initiatives relating to Climate Change When it comes to national action on climate change, Malta has two main actions and these are the mitigation action and also the adaptation action. The mitigation action includes ‘Malta’s National Strategy for Policy and Abatement Measures Relating to the Reduction of Greenhouse Gas Emissions’63 (2009), actions in capacity building and 63

Ministry for Resources and Rural Affairs, 'National Strategy For Policy And Abatement Measures Relating To The Reduction Of Greenhouse Gas Emissions' (2009)

awareness and actions prioritised on the basis of financial costs. The main focus when it comes to such mitigation actions is on the generation of energy, and on achieving a better administration of energy demand. Adaptation actions on the other hand are dealt with in the ‘Malta’s National Climate Change Adaptation Strategy’64 (2012). It is of great importance to note that there are some adaptation actions which have already been implemented, however there are some which are still in progress. Some of those that have been implemented already are the ones when the Government presented incentive systems which had to do with domestic households which have a cistern and water catchment infrastructure and also when the Department of Agriculture provided solid information as well as advisory help on issues which relate to climate, to farmers and people who work within the agricultural field. This in turn helped them find ways to help take part in climate action as opposed to aggravating the whole issue revolving around our climate. On the other hand, an example of an adaptation action which is still in progress is the one which the Government is still studying relating to the provision of treated sewage effluent as a better and cheaper source of water to be used by the farming and cultivating community. In 2015, the ‘Climate Action Act’ was enacted. This Act may be considered as a legal structure which was establish for action to contribute to the issue of mitigating climate change and to reduce helplessness, to enhance resilience and to adapt to the effects of such change. This Act sets out the duty of every person to take climate action, in fact Article 4 stipulates that, “It shall be the duty of every person together with the Government to protect the climate and to assist in the taking of preventive and remedial measures to protect the climate.”65 The law then provides us with a list of obligations that the Government has with regards to the protection of climate both for the present and the future generations.66 Among the duties of the Government with relation to climate action one may find the duty to prepare a Low-Carbon Development Strategy, to prepare a National Adaptation Strategy, to set up the Climate Action Board and also to establish a Climate Action Fund. The Low-Carbon Development Strategy has to do with development releasing less emissions. This strategy is quite long-term as it looks to be followed up until the year 2050. The Climate Action Board set up in Article 11 has a list of functions which shall be followed. Such functions include the supervision and implementation of this Act. This is very important as having an established law talking about how we must act against climate change is well and good, however, we do indeed need a body which actually makes sure that such rules are obeyed. Like in many other states, climate action is 64

Ministry for Resources and Rural Affairs, 'National Climate Change Adaptation Strategy' (2012).

Climate Action Act, Article 4.

Climate Action Act, Article 5.

not easy to achieve, and at the moment it is more successfully attained through market based incentives rather than by litigation against those whom one might presume are at fault and contributed to climate change. Hence the adoption of this Act and the set up of this Board are a good way forward, so that there will be constant monitoring of this phenomenon, and further research and negotiations may be carried out to try to find the best ways on how to tackle this problem and reach the targets imposed both by the EU as well the international community. Furthermore, this Board is obliged to consult with the Malta Council for Economic and Social Development on issues relating to this act as well as consult â&#x20AC;&#x153;with the representatives of two environmental voluntary organisations in accordance with the Voluntary Organisations Act, as their representatives, on any matters relating to this Act or any regulations made hereunder periodicallyâ&#x20AC;?.67 This board is also obliged to report to the Minister the progress made to the subject of climate change. This therefore shows that the issue of climate change is constantly being dealt with and not only that, but it is being approached in a very serious manner seeing as the Minister is always to be informed on what happens. The Minister then, may issue some sort of guidelines or rules to any sections of this law.68 4.6 Case Law relating to Climate Change When it comes to cases which relate to climate change it is of great importance to make sure that there is solid and complete evidence showing that the plaintiff is suffering or has suffered from climate change. The damages must be linked to the defendantâ&#x20AC;&#x2122;s actions or inactions. It should also be proven that a such damages will not ensue if the defendant halts his actions or inactions. In other words one has to prove the link between cause and effect, which at times is not that easy to be proven, especially under climate change litigation, which emanate between States. Most of the time small island states tend to suffer most from the consequences of climate change and they threaten to take action against industrialised countries. For example, the small island nation Tuvalu located in the Pacific Ocean has voiced its intention to file a claim against the U.S. and Australia at the International Court of Justice (ICJ) for their contribution to climate change. Tuvalu holds these two States responsible due to their failure to stabilise emissions of greenhouse gas concentrations as required by the United Nations Framework Convention on Climate Change (UNFCCC). Tuvalu claims that climate change has caused the melting of ice caps, which consequently leads to the rising of sea levels. This phenomenon is now

Climate Action Act, Article 11.

Climate Action Act, Article 12.

threatening the territory of Tuvalu because the island nation has an average elevation of two meters above sea level, and is therefore extremely vulnerable to changes in sea levels.69 Till now, Tuvalu has not officially filed a claim concerning climate change against any State at the ICJ or any other forum. In fact, this may in part be explained by legal obstacles concerning the jurisdiction of the ICJ, and the scope of legal obligations flowing from the various international environmental instruments. The first and main obstacle under this scenario is mainly Article 36(1) of Statute of the International Court of Justice which provides that ICJ’s jurisdiction is consensual, i.e., the parties must have consented to the bringing of the case before the Court. Hence, unless Australia or the United States would agree to accept the jurisdiction of the ICJ ad hoc, pursuant to Article 36(1), the ICJ would probably not have jurisdiction over Tuvalu’s claims against these States. Despite these legal problems, pressure is still made on these developing countries to make them aware of the need to respect climate change obligations, not only for their own sake but also for the sake of other vulnerable states. Apart from this, for example in the USA, one sees that there is a lot of litigation going on regarding this issue. For example, the 8th Circuit Court of Appeals concluded in a case, in which a rail-line was to be constructed for the single purpose of delivering coal to a power plant, that the impact such a construction would have on climate change must be considered. The three judge panel ‘overturned’ the Surface Transportation Board's approval of the Dakota, Minnesota & Eastern Railroad's "estimated $2 billion project" to construct about 280 miles of new rail lines to reach the coal mines of Wyoming's Powder River Basin and to upgrade almost 600 miles of existing lines in Minnesota and South Dakota, due, in part, to concerns over air quality. The judges said the proposal violated the National Environmental Policy Act.70 On a larger level, environmental groups Greenpeace and Friends of the Earth in addition to the U.S. city of Boulder (Colorado), filed a lawsuit against the U.S. ExportImport Bank and the Overseas Private Investment Corporation for financing and insuring the overseas projects of American energy firms to develop oil fields and build pipelines and coal-fired power plants, while ignoring the impact such designs would have on the environment and climate change. In this legal action, the first of its kind, filed in August 2002, at the U.S. District Court in San Francisco, the plaintiffs argue 69

The case concerning Climate Change Report- March 2007 prepared by Willem Nelissen, Laura Piazza, Ying Tjoe; and supervised by Edda Kristjánsdóttir, Esq., Prof. Mr. Rosa Uylenburg, Hege Elisabeth Veenstra-Kjos, J.D. Amsterdam International Law Clinic

The decision can be read online at: http://caselaw.lp.findlaw.com/data2/circs/8th/021359p.pdf

that the federal agencies are required by federal law to make an environmental assessment of the projects.71 On Dec. 17, the city of Oakland, Calif., also joined the lawsuit. In another case, several states, cities and prominent NGOs filed a petition against the U.S. Environmental Protection Agency’s (EPA) failure to regulate greenhouse gas emissions under the Clean Air Act (CAA). The EPA ruled in late August 2003, that carbon dioxide (CO2) is not a pollutant and thus eliminated the possibility of requiring new pollution controls on motor vehicles. The EPA does not believe that the CAA authorises regulations to address global climate change, or that Congress has authorised the agency to regulate CO2 emissions.72 Furthermore, even the European Court of Justice has also contributed to a number of cases which deal with climate change. The cases ‘PreussenElektra AG v Schleswag’ (C-379/98) 73 and ‘EVN AG and Wienstrom SmgH v Republik Österreich’ (C-448/01) 74 both deal with the regulation of electricity. The issue of climate change here comes into action when one considers the fact that electricity which is supplied through renewable energy helps in reducing GHG emissions. Here, the ECJ expressly stated that reducing global warming related to certain renewable energy sources for producing electricity75. 4.7 Conclusion and Recommendations Climate action is definitely important. This is so because nothing on our planet is infinite and so, we have to take care of it in order for our resources and our planet in general to be long lasting. We cannot simply just think of ourselves; future generations do matter. Therefore, action must be taken even if at times we may have to suffer in order to maintain this planet. From the analysis made above I believe that the best results for climate action are being attained through the use of market based incentives, such as emission trading, at times even the use of carbon tax, promotion of best available technologies for industries, and promotion of renewable energy. 71

Link to brief: http://www.climatelawsuit.org/2002-08-26_Complaint.pdf

The decision can be found in the Sept. 8, 2003 Federal Register, p. 52922. Link: http://a257.g.akamaitech.net/7/257/2422/14mar 22764.htm

20010800/edocket.access.gpo.gov/2003/03-

See PreussenElektra AG v Schleswag (C-379/98), available at < http://curia.europa.eu/ > (last visited Mar. 06, 2017).

See EVN AG and Wienstrom SmgH v Republik Österreich (C-448/01), available at < http://curia.europa.eu/ > (last visited Mar. 06, 2017).

Faure M and Nolkaemper A, Climate Change Litigation Cases (1st edn, Friends of the Earth Netherlands - Milieudefensie 2007)

Through these various mechanisms this problem will be mitigated. Definitely one must not be selfish in these situations. As Mike Huckabee76 stated, “Whether humans are responsible for the bulk of climate change is going to be left to the scientists, but it’s all of our responsibility to leave this planet in better shape for the future generations than we found it.”77

76 77

Mike Huckabee is an American politician and he was the former Governor of Arkansas. 'Mike Huckabee Quotes' (BrainyQuote, 2017) <https://www.brainyquote.com/quotes/quotes/m/mikehuckab395997.html?src=t_climate_change> accessed 5 March 2017

5. Corporate Liability by Luisa Briffa 5.1 Introduction

According to the Rule of Law 78 , the law not only applies to individuals and private entities but also to a government and its constituent officers. In the instance such as that of a corporation79, which is a legal person who enjoys the effects of its personality, such a corporation must also be subjected to the law. This concept leads to the notion of corporate liability. Liability; “The state of being legally responsible for something”80. A step onward from this is the meaning conferred by the term ‘corporate liability, which is that a corporation is to be held accountable for its acts and omissions. Liability goes hand in hand with responsibility. Such responsibility applies not only socially but also environmentally81; which is what is really of relevance to such a text. This section of the document will analyse the current situation in Malta, where direct reference will be made to the current standing in terms of legislation82. There will also be a light shed on the remits of liability in the corporative sphere, with particular reference to the liability that arises in situations where there are environmental implications. Finally, there will be an attempt to gather a more practical understanding of Corporate Social Responsibility in the local scene.

http://worldjusticeproject.org/what-rule-law.

‘’a body formed and authorized by law to act as a single person although constituted by one or more persons and legally endowed with various rights and duties including the capacity of succession’’Definition Of CORPORATION' (Merriam-webster.com, 2017) <https://www.merriamwebster.com/dictionary/corporation> accessed 27 February 2017.

'Liability - Definition Of Liability In English | Oxford Dictionaries' (Oxford Dictionaries | English, 2017) <https://en.oxforddictionaries.com/definition/liability> accessed 4 March 2017.

<http://www.businessdictionary.com/definition/corporate-social-responsibility.html> accessed 27 February 2017.

Both primary and secondary legislation.

5.2 The Maltese Situation

As it was justly put in the article first published in 2011 entitled ‘Maltese Environmental Law and Environmental Responsibility behind the Corporate Veil’83 by Ganado Advocates, the development of environmental law has mostly served to cater for a previously large grey area dealing with the environment.84 In the case of Malta there is essentially nothing that can be said about corporations or about the officers employed in such corporations, as having any specific environmental liability. The situation is rather one in which general principles are opted for when dealing with circumstances where there might be a specific environmental wrong. The introduction of the previous Chapter 435 of the Laws of Malta (2002) titled ‘Environment Protection Act’, gave rise to a set of principles85 which had been enacted with the intention to instil the notion of there being a need to protect the environment, for the very sake of protecting it and for its protection for the enjoyment by future generations. Such an act also set up and catered for an Authority; for which the Act provides extensively for its set-up and function86. Amongst its other sections, this act also provides for the establishment of a National Commission for Sustainable Development87. As a piece of legislation, the Environment Protection Act served as a basis for the multitude of legal notices that followed. The legal notices ancillary to this act, cover a range of subjects dealing from nature protection, water and waste management, radiation control and so on. Thus these legal notices, which happen to be quite hefty in amount, served as an extensive attempt to cover a variety of lacunae of aspects relating to the environment which needed to be regulated. 83

‘Maltese Environmental Law and Environmental Responsibility behind the Corporate Veil’ penned by Dr Jotham Scerri Diacono and Dr Analise Caruana first published in 2011 available at website http://www.ganadoadvocates.com/resources/publications/maltese-environmental-law-andenvironmental-responsibility-behind-the-corporate-veil/

As it will be delved into further on in this document, it will be seen how there is yet a considerable area that needs to be legislated on in terms of environmental legislation.

Environment Protection Act 2002, Part II- Duty to Protect the Environment.

Environment Protection Act 2002, PART III.

Environment Protection Act 2002, PART IV.

Almost ten years on, legislators attempted to harmonise both the regulation and safeguarding of the environment along with development. This was achieved in the ‘Environment and Development Planning Act’ Chapter 504 of the Laws of Malta88. The act started off by stating: ‘To protect the environment, to make provision for the planning and management of development and for the establishment of an authority with powers to that effect and for matters connected therewith or ancillary thereto.’; Although as an act it succeeded in streamlining laws regulating the protection of the environment alongside development, as an act it did not provide however for any specific instances where a corporation or an officer of such a corporation could be held liable in instances where there is some sort of negative impact on the environment or when any illicit action is done, which has to do with any aspect dealing with the environment. Recently a new Environment Protection Act has been adopted, namely Act I of 201689 and also a new Development Planning Act namely Act VII of 201690 has also been adopted. This brought about a demerger between the newly established Environment and Resource Authority and the Development and Planning Authority. The newly adopted Environment Protection Act has introduced new concepts especially for the implementation and enforcement provisions, and it has also set up a new Environment and Resource Authority. It is an Act which was patterned out on the previous Acts, in fact the provisions on environmental principles have been retained, under Part II of the Act, and these are not enforceable in a Court of Law. These principles are very generic in nature, and the duties mentioned under such principles are then transposed under more specific laws specifically adopted to safeguard specific areas of the environment. Some might argue that these principles are only essentially acting as a guide and not a determining factor in the workings of the government, due to the fact that they are not enforceable in a court of law; but considering the large number of laws which have been adopted under this Act, also with the several EU

Environment and Development Planning Act 2010.

Found as the Environment Protection Act 2016 under Chapter 549 of the Laws of Malta.

. Found as the Development Planning Act 2016 under Chapter 552 of the Laws of Malta.

commitments that Malta has to follow, and with public participation in environmental matters such environmental duties on the part of the Government are continuously being scrutinised and tested, and hence it is very difficult to ignore. With regard to corporate liability, one has to note that the situation did not change much, and the new Act, like the previous ones, does not provide for specific provisions dealing with limited liability companies and does not create any special regime for company officers. In fact body corporates are mentioned in a general context, mainly under Art. 54 whereby the Minister responsible for the environment is empowered to pass regulations that may, among other things, provide that environmental wrongdoing, will amount to an offence and in such cases “where the person guilty of the offence is a director, secretary or manager of a body corporate for the economic benefit of whom the offence was committed, such body corporate shall be liable in solidum with the offender for the payment of the said civil debt”. Similarly, the legal notices dealing with Maltese environmental law do not create any particular regime regulating environmental responsibility of company officers. Considering that no specific law exists on this matter, one will have to determine who committed the wrongful act and who, according to law, is responsible for the consequences ensuing from the wrongdoing: the company or the natural persons, officers of the company, who act on its behalf? The wrongful act will have civil repercussions and may also have criminal consequences for the wrongdoing.91 In some jurisdictions, the trend in environmental liability is on the increase and such environmental liability is being shifted specifically in the law from the corporate person onto its officers or both. In certain jurisdictions, the law is drafted in such a way so as to implicate individuals directly associated with the company, such as company directors, corporate officers or managers, and (under US federal law) shareholders.92

‘Maltese Environmental Law and Environmental Responsibility behind the Corporate Veil’ penned by Dr Jotham Scerri Diacono and Dr Analise Caruanafirst published in 2011 available at website http://www.ganadoadvocates.com/resources/publications/maltese-environmental-law-andenvironmental-responsibility-behind-the-corporate-veil/

Ibid.

Maltese environmental law has not yet followed this trend of no-fault liability and continues to treat officers’ responsibility under general principles. Meanwhile, one eagerly awaits any Maltese law proposition that may extend corporate officers’ liability for environmental harm along the same lines as has occurred under US, UK, Australian and other continental European legislations.93 5.3 European Legislation

In 2004, the European Commission attempted to cater for the lacunae concerning “environmental liability with regard to the prevention and remedying of environmental damage” by Directive 2004/35/CE of the European Parliament and of the Council. The Directive covered an extensive amount of ground of different aspects relating to the legal consequences in cases giving or ought to give rise to environmental responsibility. Article 3 of the Directive states that the objective of such a directive is, “namely to establish a common framework for the prevention and remedying of environmental damage at a reasonable cost to society”. This article goes on further to say that in order to be tackled to a sufficient extent it had to be tackled by the Commission. Such directive was transposed accordingly by the Member States, which was allowed to be done over the period of six years. In the case of Malta, provisions from this directive were transposed by means Legal Notice 126 of 2008 as further amended. Under these regulations the only reference made to a body corporate or rather to a legal person is under the definition of operator which means any natural or legal, private or public person who operates or controls the occupational activity or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorisation for such an activity or the person registering or notifying such an activity. Hence public and private companies operating in any sector as defined under these regulations, who cause any environmental damage may be held liable. As already highlighted above, environmental wrongdoing with regard to corporate bodies is still based on general principles. And both when the 93

Ibid.

environmental wrong doing is criminal or civil, one has to determine whether the offence or the damage has been actually caused by the body corporate itself i.e. by its directors and officers acting on its behalf or by the directors or officers personally. Furthermore, considering that no specific environmental liability rules exist which regulate the environmental responsibility of body corporates, such responsibility has to be analysed under the respective criminal and civil regimes. It is good to note that even the Directive itself did not enter into this merit. 5.4 Corporate Social Responsibility

The responsibility that ought to be exercised by corporations when it comes to the protection of the environment falls under the concept of Corporate Social Responsibility (CSR). This form of responsibility is as yet a voluntary option that corporations may take up. It is true that as a State, Malta is a signatory to conventions such as the Aarhus Convention 94 , whose objective 95 focuses mainly on the right that every person has, at present day and in the future, to lead a life where one may live in an environment where conditions are suitable to their state of health and welfare. Another important right listed under Article 1 of the Aarhus Convention (1998), is the right to, “access to justice in environmental matters…’’. Although such a right is desired, especially by those who voice the safeguarding of the environment, and it is a right of pinnacle significance, it may be perceived to be more of a guiding principle rather than a binding rule. One might ask why it is so, that not all companies choose to act responsibly when it comes to the environment? The answer according to A Vella and K M Zammit Manduca 96 is quite simple; it’s a matter of whether a company will ultimately reap fruits in the form of dividends from opting to be more environmentally responsible. From a pro-development approach this is 94

Commission, ‘Convention On Access To Information, Public Participation In Decision-Making And Access To Justice In Environmental Matters’, Aarhus, Denmark, on 25 June 1998.

Aarhus Convention Act Art 1.

Astrid Vella and Karen M. Zammit Manduca, Corporate Social Responsibility in Environment Planning and the Construction Industry in Malta, p.189, <http://www.um.edu.mt/europeanstudies/books/CD_CSP3/pdf/tmsitbc-avellakmzmanduca.pdf> accessed 3 March 2017.

understandable as realistically there must be a balance between safeguarding the environment whilst maintaining a healthy economy and development. According to a survey piloted by PwC97, in 2013, showed that 60% of the local companies surveyed have incorporated in their working and strategy policies CSR; in others, CSR is exercised in forms of programmes98. The Times of Malta piece from which the above survey is quoted, further provides that the survey showed that 48% of those same interviewed companies have a department dedicated to CSR. In the light of this survey, CSR incorporated not only environmental responsibility but also social awareness and inclusion in the community. Such a positive result is significant as it seems to indicate that companies both of local origin and even those companies which over the years have landed on our shores, value the importance of taking care of the environment in carrying out business. It is encouraging that companies are realising the importance of moving towards a cleaner and more responsible way of conducting business. This by no way means that progress should stop here. If anything, positive results such as these should act as encouragement for more companies to become more responsible, and those who have already started this journey to continue to further their success by remaining responsible. It is not enough that only some companies are exercising responsibility socially and environmentally. All companies, regardless of their field of business and their size as a company, should be socially and environmentally responsible. Exercising responsibility in virtue of the environment along with its protection and upkeep, should be determining factors when a corporation makes a decision that will have repercussions on the environment itself and the public who shares the enjoyment of that same environment and the right for future generations, to have the possibility to enjoy the environment. Regardless of the fact that there is a noteworthy share of local companies who are moving towards a more responsible way of carrying out business through

'Sustainability' (PwC, 2017) <http://www.pwc.com/mt/sustainability> accessed 3 March 2017.

Allied Ltd, '60% Of Companies Involved In CSR' (Times of Malta, 2013) <http://www.timesofmalta.com/articles/view/20130606/business-news/60-of-companies-involvedin-CSR.472793> accessed 3 March 2017.

various practices, T Forsyth99 rightly says that practices alone are not enough. Forsyth goes further on to say that it is through legislation, which governments hold the power to enact, that there can be, â&#x20AC;&#x153;ultimate responsibilityâ&#x20AC;Śâ&#x20AC;?. Once taking every element into account, ranging from the present form legislation, its application and consequences, the possible room for improvement in enforcing the law which regulates the safe-keeping of the environment, and also the responsibility factor, there seems to be the obvious reaction that there needs to be an even more specific form of legislation dealing with corporations. What is meant by this, is that practiced principles, good enough as they may be, are not enough and thus there seems to be a need felt for there to be progression towards legislation in the ambient of the safeguarding of the environment through the Corporate Social Responsibility which should be the rule and not the exception. In 'The Emergence Of Non-State Market-Driven (NSMD) Global Environmental Governance: A Cross-Sectoral Assessment' as part of Governance for the Environment, Graeme Auld and others discussed how the lack of reaching a common decision to seek action when dealing with the most pressing of environmental issues, which are not essentially being taken seriously enough, is fault to states and intergovernmental bodies. The journal holds that as a reaction, corporate bodies have taken matters into their own hands to a certain extent; that is through actions usually grouped under CSR. In Malta, one might consider that we have a similar scenario, even though one must also admit that certain corporate bodies try to participate in initiatives which promote the environment. In fact these actions or attempts at being more socially responsible, especially in terms of the environment is all a matter of voluntary will. It can be said to be so as there is no hard and fast written law which imposes any environmental obligation or liability of any sort, which can be enforced in a court of law. The next step forward is at the very least an attempt at trying to come up with a solid solution to solve this lack of legislation in terms of regulating corporations in the remits of environmental concerns.

Timothy Forsyth, 'Environmental Responsibility And Business Regulation: The Case Of Sustainable Tourism' (1997) 163 The Geographical Journal <http://eprints.lse.ac.uk/4733/1/Environmental_responsibility_and_business_regulation_(LSERO). pdf> accessed 4 March 2017.

5.5 Recommendations

When deliberating all the constituent pieces of information under this section, a somewhat obvious recommendation comes to mind - Legislate! As obvious as this may seem, time and time again legislators have left out matters such as corporate liability when there are environmental wrongs or responsibilities concerned. It is true that there are legal ramifications in place that attempt to establish principles and fines where these provisions of law are not followed. However, upon looking properly at the application of such provisions, duties, penalties and so on, one cannot confidently say that such actions are present primarily or solely for the protection and preservation of the environment. Thus what is being proposed in more concrete terms is that legislators should make concrete strides towards reaching that stage of drafting legislation which has at its core the safekeeping and protection of the environment. What has to be done differently is that there is the possibility to seek remedies in a court of law, where such articles can be invoked. After all, why state that a citizen has a right to a clean environment, theoretically speaking, when such a right would not be enforceable in a court of law? Ancillary to this proposal, it is recommended to have environmental liability, in a form which is left to the discretion of the legislators themselves, imposed on corporations. In the process of implementing such a legislation, the government could, if he chooses to do so, provide incentives so that companies and their employees become more environmentally conscious and responsible, even more than they might already be. This would therefore mean that a person would be able to file for a remedy in a Court of Law, for an environmental wrong against another party, including corporations; always provided that there is at the very least juridical interest. One final point to be added to this single, yet pleated proposal is that where there is drafting of such a proposed piece of legislation, it shall be done in conjunction not only with any relevant concerned regulatory authority, independent or otherwise, but also with corporations themselves. This would ensure that this desired and well needed balance is attained.

6. Legal Personality of Land

by Jack Delicata 6.1 An Introduction

Legal personality as a concept is one that is normally associated with persons, and with the passage of time has also extended to corporations and companies who are now viewed as juridical persons - to have legal personality can be defined as affording characteristics and qualities from which human beings may derive their legal capacity and status within their society's legal order. 100 However, the notion of land possessing legal personality is an intriguing prospect that has unfortunately not yet been fully realised and explored – however, New Zealand may boast about being the pioneer of such an act of legislation when it granted legal personhood to Te Urewera National Park and Whanganui River and its tributaries.101 6.1.1 New Zealand as the Pioneer of legal personality of land

The Te Urewera national park is proudly home to a vast world of stunning lakes, forest and mountains102. As stated in the Te Urewera Act of 2014, the national park is “ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty.’’ Also outlined in the Act, the park is renowned for cultural purposes besides its self-evident aesthetic beauty.103 Therefore, in order to protect the park ‘’for its intrinsic worth’’, in 2013 the Tūhoe people and the New Zealand government agreed upon the aforementioned Te Urewera Act, agreeing that Te Urewera, as explicitly stated in the Act itself,

100

, 'Legal Personality' ( 2016) <http://www.businessdictionary.com/definition/legal-personality.html> accessed 23 February 2017

101

, 'New Zealand' ( n.d.) <http://www.earthlawcenter.org/international-law/2016/8/new-zealand> accessed 27 February 2017

102

, 'Te Urewera' ( n.d.) <http://www.newzealand.com/int/feature/te-urewera/> accessed 27 February 2017

103

Te Urewera Act 2014 s 1 (3)(1)

‘‘should have legal recognition in its own right’’ 104 , giving the Te Urewera National Park “all the rights, powers, duties, and liabilities of a legal person.’’105 A Board was then established to serve as “guardians” of Te Urewera and to protect its interests, as the park obviously cannot represent itself in any way. The granting of legal personality does nothing to its status as a park and people can still enjoy it as they did before – however, permits for activities for hunting, amongst others, is regulated by a board which is made up of government officials and Maori representatives.106 New Zealand also struck legislative gold with the Tutohu Whakatupua Treaty Agreement107, this time in the form of Whanganui River and its tributaries, under the Maori worldview “I am the River and the River is me.”108 – this goes along with the views of environmentalists that nature is the extension of one’s self and how essential it is for people to be at one with nature in order to achieve peace and harmony – this view should not be shunned but embraced if we are to make steps forward in our journey towards the improvement of environmental matters as a society. One must simply look at the words of the scientific great Albert Einstein and what he said regarding nature – “Look deep into nature, and then you will understand everything better.’’ Under the Tutohu Whakatupua Treaty Agreement, the river mentioned above has been given legal status under the name Te Awa Tupua. Te Awa Tupua has been recognized as “an indivisible and living whole”109 and “declared to be a legal person.” Two guardians, one from the Crown and one from a Whanganui River iwi, will be given the role of protecting the river. What is so monumental for acts of this kind is that there is no longer a requirement to demonstrate personal injury in order to protect the land, meaning

104

Te Urewera Act 2014 s 1 (3)(9)

105

Te Urewera Act 2014 s 1 (11)(1)

106

Bryant Rosseau, 'In New Zealand, Lands and Rivers Can Be People (Legally Speaking)' ( 2016) <https://www.nytimes.com/2016/07/14/world/what-in-the-world/in-new-zealand-lands-and-riverscan-be-people-legally-speaking.html?_r=1> accessed 23 February 2017

107

http://www.harmonywithnatureun.org/content/documents/193Wanganui%20River-Agreement--.pdf

108

, 'New Zealand' ( n.d.) <http://www.earthlawcenter.org/international-law/2016/8/new-zealand> accessed 27 February 2017

109

Tutohu Whakatupua Treaty Agreement 2012 s 2 (4)(1)

there would be no need to show harm to a particular human; lawsuits â&#x20AC;&#x153;can be brought on behalf of the land itself.â&#x20AC;?110 This exemplary form of legislation has only so far featured in New Zealand however it is of my opinion that it should become a fixture elsewhere, particularly in Malta, where environmental law has often been overlooked and has thus resulted in several controversial circumstances in which the environment has become the victim. This cannot continue to be the case in a world where the crux of its problems, putting aside economic difficulties and poverty (themselves consequences of poor environmental management) seems to rest on environmental worries caused by generations of humans who disregarded its importance by abusing it for the benefit of themselves. This form of legislation would grant the land at question a legal voice in the form of representatives for the land at hand, which would most surely be a welcome sight on an island choked by high-rise apartments and an increase in empty buildings and what seems to be a disregard from the general public about the most urgent matters of environmental importance. 6.2 The Local Situation

Controversies stemming from environmental matters have been synonymous with Malta for quite some time, however one such recent situation which garnered the attention of the Maltese public in relation to a situation of environmental importance was the building of an American institute, later agreed to be a university, on an ODZ (outside development zone) at Zonqor Point. The term ODZ suggests that no sort of development can take place in such zone, but there is a slight exception in that the Structure Plan provides that the following categories of built-structures are considered normal and legitimate inclusions in the non-urban scene, for example farmhouses and other genuine agricultural buildings, reservoirs, control buildings and walls/fences at archaeological and ecological sites. 111 The building of a university across 90,000 m2 of this land is of course another scenario and most definitely falls outside the boundary of what is acceptable. The question at hand is not whether 110

'New Zealand' ( n.d.) <http://www.earthlawcenter.org/international-law/2016/8/new-zealand> accessed 27 February 2017

111

Administration Team of Chetcuti Cauchi Advocates, 'Outside Development Zone (ODZ) Is a Zero Tolerance stance too t' ( 2012) <https://www.ccmalta.com/publications/outside-development-zone(odz)-is-a-zero-tolerance?lang=it-CH> accessed 24 February 2017

the steps taken by the Government were correct or not, but what the type of legislation being proposed would have implicated, and potentially changed in the run up to what would later be branded as a fiasco. What if an Act of Parliament granted this ODZ Area the characteristic of a legal personality, assigning persons, possibly members of environmental NGOs who would have at heart the best interests of the environment, to ‘represent’ the land and, in the words of the Te Urewera Act, “preserve as far as possible the natural features’’ of the land in question. The implementation of legislation of this kind would most definitely be branded as ‘revolutionary’ in a country which has seamlessly struggled to move forward with the environmental times, but a revolutionary change, which although in hindsight may seem questionable to the general public who lacks sufficient education when it comes to environmental matters, will in the future ensure that Malta’s most prized environmental assets will be safeguarded and secured thus ensuring an improvement in a sector of Maltese society that direly needs working upon. 6.2.1 Action over address, prevention over solution

The fact that positive legislation such as the granting of legal personhood to land or even the rights of nature, something that will be elaborated upon later on, is absent in any sort of form from Maltese environmental legislation is indicative of the conservative stance and mentality we have on environmental issues – Maltese legislation simply hasn’t yielded any sort of cohesive plan regarding environmental problems and has instead only addressed them vaguely under the Environment Protection Act. The Environment Protection Act is no doubt a step in the right direction by Maltese parliamentarians who are addressing what needs to be done vis à vis the environmental situation in Malta – and under it one finds a number of specific legal notices in various areas of the environment, which specifically indicate how implementation and enforcement for the protection of the environment has to be carried out. This new Act for the first time, has set up an Environmental Authority, which is specifically dedicated towards the protection and enhancement of the Maltese environment. The Authority’s obligations are spelled out clearly under this Act, and in its year in function this Authority is continuously trying to equip itself with the necessary human and financial resources to carry out its obligations in a diligent manner. And amongst its

obligations, the Authority tries to safeguard Maltese land and landscape, but sometimes the legal tools that it has are not enough so that it will give its hundred percent performance. The current mentality in Malta with regard to land use and the protection of the environment at times can be somewhat conflicting. Perhaps the legislation being proposed in this paper would serve as a kick off to change this mentality. Furthermore, it is also very important to keep in mind that law is not the only solution for the best protection of our environment, but definitely there needs to be a step further. This step consists in having goodwill on the part of all of us to react and take the necessary actions and preventive measures, which are the only assurance of a better environment around us. Considering the small size of Malta, this is very important to follow, because land is very precious, and its development in an unplanned manner will definitely effect our environment and our way of living. In fact in Malta certain pressure is now being felt by residents living in overdeveloped areas like Paceville, Qawra and Bugibba. For this purpose new pathways have to be delved into, because as the American philosopher Richard Buckminster Fuller put it â&#x20AC;&#x153;You never change things by fighting the existing reality. To change something, build a new model that makes the existing model obsolete.â&#x20AC;?112 And so this is why the legislation elaborated upon in this paper would clearly suit a country like Malta which has taken several missteps up the proverbial environmental ladder â&#x20AC;&#x201C; that the land, which has been at the forefront of abuse, can be represented by people who have the environment as a priority, and the inclusion of members of environmental NGOs as representatives of the land would most surely be the right step forward and ensure that environmental mishaps become a thing of the distant past and we may look to the future with optimism. 6.3 Looking Forward

The implementation of legislation enacting legal personality of land is something which we must strive towards and New Zealand has provided us with the tools needed on how this legal possibility can be realised, however in my opinion the ultimate aim to achieve in environmental law terms is the promulgation of rights 112

Daniel Quinn, Beyond Civilization: Humanity's Next Great Adventure (Harmony Books, ) 137

of nature – which means that nature is recognised and honoured as having its own rights. Rather than treating nature as property under the law, rights of nature acknowledges that nature in all its life forms has the right to exist, persist, maintain and regenerate its vital cycles. And we – the people – have the legal authority and responsibility to enforce these rights on behalf of ecosystems. The ecosystem itself can be named as the defendant. Although New Zealand has not formally adopted the Rights of Nature into statutory or constitutional law, the nation has acknowledged the inherent rights of nature by granting legal personhood to selected lands and rivers. This clearly shows how the rights of nature and legal personhood go hand in hand and that both are of the utmost importance to achieve. By recognising rights of nature in its constitution, Ecuador – and a growing number of communities in the United States – are basing their environmental protection systems on the premise that nature has inalienable rights, just as humans do. This premise is a radical but natural departure from the assumption that nature is property under the law,113 and though it may be viewed as radical it is a necessary step forward in the protection of the environment and the prevention of man-made disasters that have crippled our Earth and its natural systems. 6.4 Recommendations

1.The promulgation of the legal personality of land in a country considered barren in the enrichment of environmental improvement would be a most welcome and necessary addition, and examples in recent Maltese history have showcased the need for such legislation to be introduced with haste. 2. The ultimate aim that current and future governments must strive for in order to truly safeguard our environment and its most valuable possessions, together with the implementation of the legal personality of land, are rights of nature. Only by introducing these rights would we be really making a huge step in putting forward a plan of action.

113

‘What is Rights of Nature' ( 2017) <http://therightsofnature.org/what-is-rights-of-nature/> accessed 26 February 2017

3. A new mentality must be put at the forefront of our environmental thinking â&#x20AC;&#x201C; action over addressing, and prevention over solution, which is something that not only citizens must take upon and abide by, but also the environmental authorities. With this mentality in mind, the way we treat undeveloped land and property will only change for the better, and subsequently, instead of the environment being at the receiving end, it will finally walk out as the victor.

7. Locus Standi on Environmental Non-Governmental Organisations by Andrew Padovani 7.1 Introduction Environmental Law is a body of law intended to safeguard the environment, by regulating activities that cause pollution, by providing regimes of protection for endangered species and by prohibiting certain inconsistent uses of land. It consists of treaties, statues regulations, and customary laws addressing the effects of human activity on the natural environment. 114 Over the last decade or so, and particularly post Maltaâ&#x20AC;&#x2122;s EU membership, Maltese Environmental law has undergone a huge leap from a mostly unregulated area of law to a much more comprehensive and surely more detailed network of primary and subsidiary legislation. Last year the new Environment Protection Act, found under Chapter 549 of the Laws of Malta has been adopted. This also established the new Environment and Resource Authority. This means that for the first time in Malta, a specific authority has been established for the protection of the environment. In fact this Act also led to the demerger of the Planning and Environment Authority which was established in 2010 under the now repealed Environment and Development Planning Act which previously was found under Chapter 504 of the laws of Malta. Together with the newly adopted Environment Protection Act, another important Act was adopted which is very relevant to the topic being discussed. This is the Environment and Planning Review Act found under Chapter 551 of the Laws of Malta. According to Article 3, this is an independent and impartial tribunal, established for the purpose of reviewing the decisions of the Planning Authority and the decisions of the Environment and Resources Authority. Amongst other provisions under this Act one finds a definition of Environmental NonGovernmental Organisations which means non-governmental organisations promoting environmental protection and who must also be registered under the Voluntary Organisations Act. Under this Act, NGOs have the right to appeal from decisions taken by the Planning Authority and also by the Environment and Resource Authority.

114

Wiley publishing, inc, hoboken, Definition' (YOURDICTIONARY, 2010) < >accessed 7 March 2017

new

jersey , 'Environmental law Legal http://www.yourdictionary.com/environmental-law

In fact, nowadays, one of the important issues regarding Environmental Law is the Locus Standi on Environmental Non-Governmental Organisations.

Locus standi or legal standing is the right or capacity to bring an action or to appear in a court and represent rights and/or interests. 115 The locus standi of NonGovernmental Organisations has been a topic of much debate in the past few years. Non-Governmental Organisations are typically mission-driven advocacy or service organisations that usually are not affiliated with any government. There are large and small NGOs operating around the world and structured for just about every conceivable purpose.116 NGOs deal with matters of human concern such as human rights, disaster relief, development assistance and environmental protection.117 NonGovernmental Organisations are referred to as voluntary organisations in Maltese law. The Voluntary Organisations Act, Chapter 492 of the Laws of Malta deals with voluntary organisations. Article 3 of this Act defines voluntary organisations. In Malta, there are several environmental NGOs such as, Ramblers Malta, BirdLife Malta, Flimkien ghal Ambjent Ahjar, Friends of the Earth, Greenhouse, the Malta Organic and Agricultural Movement, Moviment Graffitti, Nature Trust Malta, Fondazzjoni Ulied Hal Qormi, Birzebbuga Environmental Action Group, ETVAN Project Marsaskala and the Gozitano Farmers.

Prior to the enactment of the Voluntary Organisations Act in 2007, there was no law regulating non-Governmental Organisations in Malta. This prevented many organisations from accessing EU funds and taking part in EU programmes because they did not have the legal personality to enter into contracts with the EU. Legal personality is the capability of holding legal rights and obligations, such as entering into contracts, suing and being sued. Prior to 2007 NGOâ&#x20AC;&#x2122;s did not have a legal status and were not recognised as legal entities. This created a number of problems. For instance, NGOs were not able to get a bank loan because they lacked legal personality. Also, the absence of legal protection also meant that their officers were personally exposed to legal obligations which should rightfully be carried by the 115

'Locus standi' (English Oxford Living Dictionaries,) <https://en.oxforddictionaries.com/definition/locus_standi > accessed 7 March 2017

116

The president and fellows of harvard college, 'Nongovernmental Organizations (NGOs)' (Harvard Law School, 2017) <http://hls.harvard.edu/dept/opia/what-is-public-interest-law/publicinternational-law/nongovernmental-organizations-ngos/ > accessed 7 March 2017

117

Margaret p karns, 'Nongovernmental organization (NGO)' (Encyclopaedia Britannica , 11-292007) <https://www.britannica.com/topic/nongovernmental-organization >accessed 7 March 2017

organisation as a whole. Some Maltese NGOs have even had to register in other countries in order to gain legal recognition. The promulgation of a law on NGOs was and is necessary. The Local NGO sector has become more “professional” in the sense that they are required to conform to certain obligations and be entitled to certain rights. 118

7.2 Case Law The Court of Appeal’s decision in “The Ramblers’ Association of Malta vs. MEPA” certainly stimulates the debate on the remedies at law in local environmental matters. The international debate has been going on for quite some time, and the concept of environmental justice is gaining prominence in environmental law. One side of this debate centres on how laws and regulations are implemented and enforced. Unfortunately, very little environmental law has been tested in our Courts, and therefore the case "The Ramblers’ Association of Malta vs. MEPA" delivered on the 27th of May 2016, may very well be a landmark judgement in relation to environmental matters. This case, along with clarifying the validity of development licenses and the competence of the First Hall Civil Court in relation to such matters, also clarified the locus standi of NGOs. In this particular case, the Non-Governmental Organisation used a specific environmental legislation to seek a judicial remedy before the Courts in regards to a development permit. The Court was requested to decide whether a development permit had yet expired and whether any development after the permit’s alleged expiry could be considered valid. The defendants in the case argued that the NGO could not start the proceedings and that the Civil Courts did not have the necessary jurisdiction to deal with this issue. The First Hall of the Civil Court agreed with the defendants claims and dismissed the case but the Court of Appeal decided otherwise. Referring to the 2006 Public Participation in Plans and Programmes Regulations that transposed a number of EU regulations and a 2014 amendment on the same matter, the Court of Appeal decided that the NGO’s claim could be entertained. The Court applied the principle of the direct effect of directives to entrench these rights and concluded that the rights of an environmental NGO to seek judicial redress could be applicable and enforced even

118

Simon Busuttil, 'A law for NGOs', (Times of Malta, June 2005) <http://www.timesofmalta.com/articles/view/20050608/opinion/a-law-for-ngos.87787 > accessed 7 March 2017

8th

before this matter was transposed into Maltese law, albeit limitedly against a public authority, which in this case was MEPA. Interpreting the provisions of these legislative instruments, the court concluded that the NGO satisfied the criteria of judicial interest and had the right to request a judicial scrutiny of any action or omission by MEPA. Having established the NGOâ&#x20AC;&#x2122;s right, the Court held that this right is not without restrictions. In this case, the Court was requested to investigate and declare whether a specific permit had lapsed, with the ensuing consequences. The Court made it clear that it was affording this remedy limitedly on the basis of the specific requests made by the NGO and because, at the time when the case was instituted, the NGO did not have any other possible ordinary remedy accessible. In this specific case, the matter under scrutiny was the term of validity of a development permit. Yet the same reasoning could similarly apply to other legal matters affecting the environment, such as air quality, land contamination, water pollution, waste management and the nature conservation. The decision confirms a very basic principle, that these sectoral constituents must be regulated within a much broader legal context and not limitedly by reference to the specific legislation. Environmental law may be useful in resolving conflicts among the several sectoral laws and the differing aims. It also affirms the automatic legal standing that NonGovernmental Organisations possess in issues involving the environment and the protection afforded to such standing by the EU directives and local legislation. The Court stated that the law is very clear when it refers to such entities as automatically fulfilling the necessary requirements to satisfy judicial interest. Needless to say, such a right, as vested in the NGOs, must still be exercised with caution by those same NGOs, which must avoid needless judicial actions. This landmark decision by the Court of Appeal provides a clear avenue to be availed of in situations where the injustice is not just in what the law says but also in how it is implemented and enforced.119 7.3 Recommendations The enactment of the Voluntary Organisation Act has given several important legal rights to NGOâ&#x20AC;&#x2122;s but it is important to note that it has also given them certain duties and obligations which they must follow. Kenneth Wain, the Commissioner for Voluntary 119

Ian Stafrace , 'Matter of environmental justice' (Times of Malta, June 2016) <http://www.timesofmalta.com/articles/view/20160608/opinion/Matter-of-environmentaljustice.614686> accessed 7 March 2017

Organisations proposes that all NGO’s should be registered with his office and be open to public scrutiny. The promulgation of a law on this matter is currently being discussed. The law regulating voluntary organisations is intended to ensure transparency and accountability in NGOs. But it seems, a large number of voluntary organisations are just not interested in enrolling with his commission, which they must do if they want to apply for any government funds. According to Kenneth Wain, “amendments to the law will strengthen the powers of the commission and enrolment will be mandatory. If they are not enrolled under the new law, they will not be allowed to fundraise.” Voluntary organisations registered with the commission have to present yearly accounts, which are open to public scrutiny. Church organisations are currently exempt from these requirements, but this is all set to change with the new law. If the Church organisations qualify as voluntary organisations, then enrolment will be mandatory. The new law proposes that all voluntary organisations will have to make themselves known to the Commissioner. Though those falling under a certain income threshold will be kept on a separate register and will not have to present yearly reports. All NGO’s should be registered because donators have the right to know their money is going for the purpose that it is earmarked for. 7.4 Conclusion The Locus Standi on Environmental Non-Governmental Organisations is an important issue in environmental Law. As seen from above, Malta has several environmental NGOs, which have evolved with the passing of time. From the above analysed Act it was also shown that NGOs in general have obtained several rights and their administrative set up has been legally organised. Apart from this, environment NGOs enjoy also a specific locus standi under the newly established Environment and Planning Review Tribunal Act, to appeal decisions of both the Planning as well as the Environment and Resource Authority, two decision makers who definitely will leave a landmark on the outcome and future of the Maltese environment. What is also very important in all this is that an NGO has to be duly registered with the Commission of Voluntary Organisations in order to enjoy the full entitlement of their rights as well as be obliged to follow their legal duties and responsibilities.

Closing Remarks The aim of this proposal paper is to ascertain that measures in respect of environmental law need to be taken. We encourage Maltese citizens, with invaluable power within their own individual social standing, to make a difference and to seize the moment and react. It is important to look back at past factors of environmental law, and to appreciate existing entities of environmental law, however it is equally imperative to look to new ideas. ELSA Malta commends all those who are using their point of standing in society to speak up, discuss, and seek to make a difference with regards to the environment we live in. Furthermore, ELSA Malta, as a law student organisation, encourages the strengthening of the existing body of environmental law, striving to broaden its horizons, leading to wider environmental regulation and legislation. Each writer who took part in this project specifies methods in which improvement can be made, and for this reason, we, as the International Focus Programme Organising Committee, hope that this proposal paper has provoked thought within our social environment, and that we have stricken at areas of environmental law which are truly deserving of more attention.

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