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Courts as an arena of societal change? The Italian Constitutional Court's self-restraint facing the legislator's uncertain discretion in seabed mining: A concrete counter-example 法院是社会变革的舞台？面对立法者在海底采矿方面不确定的自由裁量权，意大利宪法法院的自我克制：一个具体的反例
IF 1.4 2区 社会学
European Law Journal Pub Date : 2024-03-21 DOI: 10.1111/eulj.12491
Giorgio Cataldo
{"title":"Courts as an arena of societal change? The Italian Constitutional Court's self-restraint facing the legislator's uncertain discretion in seabed mining: A concrete counter-example","authors":"Giorgio Cataldo","doi":"10.1111/eulj.12491","DOIUrl":"10.1111/eulj.12491","url":null,"abstract":"<p>The article explores the difficult balance of interests in the Italian field of seabed mining. In recent years, the regions, bearers of the local communities' social demands, claimed greater attention to sustainability, while the State almost always privileged productivity. The Constitutional Court always took an attitude of self-restraint, basically adhering to State reasons. Given this starting point, it is not entirely certain that the European Court of Justice's 2022 ruling, which included the environmental interest alongside economic concerns, will bring concrete developments. Indeed, although environmental protection falls under constitutional principles from 2022, there is a complex framework of interests involved in the sector, from which political power suffers above all. Consequently, the reception of social demands makes the effort of only the Court insufficient. The Italian case thus illustrates some of the constraints that can weigh on courts, especially constitutional courts, in their ability to constitute an arena of societal change.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"29 3-6","pages":"326-339"},"PeriodicalIF":1.4,"publicationDate":"2024-03-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12491","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140204406","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Beyond OPOSA: Courts reinforcing intergenerational equity as customary international law 超越《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约任择议定书》：法院将代际公平作为习惯国际法予以加强
IF 1.4 2区 社会学
European Law Journal Pub Date : 2024-03-18 DOI: 10.1111/eulj.12489
Josiah David F. Quising
{"title":"Beyond OPOSA: Courts reinforcing intergenerational equity as customary international law","authors":"Josiah David F. Quising","doi":"10.1111/eulj.12489","DOIUrl":"10.1111/eulj.12489","url":null,"abstract":"<p>In recent years, children across the globe, such as Greta Thunberg and Kelsey Juliana, are seen at the front line of efforts to hold governments accountable for environmental damage. In the Philippines, the case of <i>Oposa v. Factoran</i> gave legal standing to minors and unborn generations invoking their constitutional right to a balanced and healthful ecology. The Philippine Supreme Court based its decision on intergenerational equity—a principle stating that every generation has an obligation to protect the environment for the next.</p><p>Representation of future generations in courts is not a new concept, nor is it unique to the Philippines. By examining national laws, treaties and conventions and court decisions by both domestic and international courts, this article aims to show how intergenerational equity has been widely recognised by almost all countries globally as evidence of state practice and <i>opinio juris</i>.</p><p>This article argues that the principle of intergenerational equity is ripe for consideration as customary international law and discusses how domestic and international courts and tribunals have been instrumental in establishing such and recommends that children and unborn generations be given legal standing as a necessary consequence.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"29 3-6","pages":"422-444"},"PeriodicalIF":1.4,"publicationDate":"2024-03-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140150148","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Recognising the rights of nature: How have the courts fared? 承认自然的权利：法院的表现如何？
IF 1.4 2区 社会学
European Law Journal Pub Date : 2024-03-13 DOI: 10.1111/eulj.12490
Tolulope N. Ogboru
{"title":"Recognising the rights of nature: How have the courts fared?","authors":"Tolulope N. Ogboru","doi":"10.1111/eulj.12490","DOIUrl":"10.1111/eulj.12490","url":null,"abstract":"<p>The Rights of Nature (RoN) concept is an evolving theory in environmental law. It advocates that natural objects be respected and allowed to exist, thrive and flourish for themselves and not for utilitarian purposes. However, attempts to apply the rights often result in litigation. The outcomes of these cases have grave implications for the impact of the RoN concept on the development of jurisprudence and environmental protection, which will further determine its acceptance or rejection by the international community. An examination of some key cases reveals some positive developments that can enhance the implementation of the concept, but it also demonstrates that there are some challenges in the approach adopted by the courts. The article concludes that the RoN can be a jurisprudential tool to enhance environmental protection only where, in addition to well-written constitutional and legislative provisions, court decisions in these cases are of practical consequences.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"29 3-6","pages":"445-458"},"PeriodicalIF":1.4,"publicationDate":"2024-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140150143","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Judicial approaches to science and the procedural legitimacy of climate rulings: Comparative insights from the Netherlands and Germany 科学的司法方法与气候裁决的程序合法性：荷兰和德国的比较见解
IF 1.4 2区 社会学
European Law Journal Pub Date : 2024-03-13 DOI: 10.1111/eulj.12483
Juliana de Augustinis
{"title":"Judicial approaches to science and the procedural legitimacy of climate rulings: Comparative insights from the Netherlands and Germany","authors":"Juliana de Augustinis","doi":"10.1111/eulj.12483","DOIUrl":"10.1111/eulj.12483","url":null,"abstract":"<p>This article explores how judicial approaches to science relate to the procedural legitimacy of rulings in cases where the plaintiffs seek a change in a government's overall climate policy. It reviews challenges in court interaction with climate science and compares two prominent cases: <i>Urgenda v. The State of the Netherlands and Neubauer et al. v. Germany</i>. The selected lawsuits yield comparative interest in aiming for changes in national climate policies and emission mitigation targets, involving the same kind of evidence (Assessment Reports by the Intergovernmental Panel on Climate Change) but resulting in partially opposing decisions. The analysis reveals that scientific inputs informed courts about climate change risks and mitigation measures. It also suggests that differing approaches to scientific reports influenced contrasting decisions regarding mitigation targets. Finally, it provides insights into how engagement with evidence might impact judgments' legitimacy from a procedural perspective.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"29 3-6","pages":"378-392"},"PeriodicalIF":1.4,"publicationDate":"2024-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12483","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140150147","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
A rights-based approach to the choice of forum in climate displacement litigation: Lessons from the Americas 以权利为基础的气候流离失所诉讼法院选择方法：美洲的经验教训
IF 1.4 2区 社会学
European Law Journal Pub Date : 2024-03-13 DOI: 10.1111/eulj.12486
Armelle Gouritin
{"title":"A rights-based approach to the choice of forum in climate displacement litigation: Lessons from the Americas","authors":"Armelle Gouritin","doi":"10.1111/eulj.12486","DOIUrl":"10.1111/eulj.12486","url":null,"abstract":"<p>Few studies address climate litigation and climate forced mobility together, and the link between climate litigation and internal forced climate displacement remains poorly addressed. This article aims to participate in filling this void. We focus on climate displacement litigation argued before regional human rights courts (the Inter-American Court) and national human rights protection bodies (the Mexican Commission) to determine the adequacy of each from the perspective of potential litigants. We address institutional, procedural and positive law within the context of water scarcity. We find that while institutional and procedural aspects reveal the potential of the Inter-American Court in ruling on climate displacement cases, the application of the positive obligations doctrine by the Mexican National Human Rights Commission is more disaggregated and a priori suitable to ground the course of action of potential litigants.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"29 3-6","pages":"362-377"},"PeriodicalIF":1.4,"publicationDate":"2024-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140150145","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Access to justice and strategic climate litigation in the EU: Curing the incurable? 欧盟的司法救助和战略性气候诉讼：治愈不治之症？
IF 1.4 2区 社会学
European Law Journal Pub Date : 2024-03-11 DOI: 10.1111/eulj.12487
Angelika Krężel
{"title":"Access to justice and strategic climate litigation in the EU: Curing the incurable?","authors":"Angelika Krężel","doi":"10.1111/eulj.12487","DOIUrl":"10.1111/eulj.12487","url":null,"abstract":"<p>Access to justice in the EU is to be assured via both the CJEU and national courts through direct and indirect action procedures. Following this, the main argument developed throughout this analysis is that the CJEU differentiates the revision standard when interpreting the obligations of EU institutions and those of Member States. It is concluded that this kind of interpretation maintains the limitations to access to justice for individuals in the EU (the ‘incurable’), even when faced with the attempt to overcome this restrictive interpretation in the specific case of strategic climate litigation (‘curing the incurable’). The specific case of strategic climate litigation is used as an example to illustrate the negative consequences of limitations to access to justice for individuals in the EU. In conclusion, it is assessed whether there are any other ‘real cures’ for this deadlocked situation and what the rationale is behind these double standards.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"29 3-6","pages":"265-280"},"PeriodicalIF":1.4,"publicationDate":"2024-03-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140105752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Does the European Court of Justice induce societal change? The record so far—with a green future in mind 欧洲法院会引发社会变革吗？迄今为止的记录--着眼于绿色未来
IF 1.4 2区 社会学
European Law Journal Pub Date : 2024-03-03 DOI: 10.1111/eulj.12484
Henri de Waele
{"title":"Does the European Court of Justice induce societal change? The record so far—with a green future in mind","authors":"Henri de Waele","doi":"10.1111/eulj.12484","DOIUrl":"10.1111/eulj.12484","url":null,"abstract":"<p>Over the seven decades of its existence, the European Court of Justice (ECJ) has performed well as a conflict-solving institution. From the existing literature, it becomes less clear however to what extent it served as an effective agent for societal change. Obtaining clarity on this issue seems imperative in the current day and age, considering the gargantuan challenges of accelerating climate change and environmental degradation: if the ECJ generally manages to ‘deliver’, at least some further progress could realistically be expected on this front also. The present article conducts an examination reviewing the experiences in the green domain from a comparative perspective, seeking to discern possible patterns and draw common inferences. Thus, it aims to expose how and when judges prove successful in recalibrating the conduct or opinions of real people in actual practice. Those insights may well inform future progress in different fields—the ecological as much as anywhere.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"29 3-6","pages":"281-293"},"PeriodicalIF":1.4,"publicationDate":"2024-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12484","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140032879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Courts as an arena for socioenvironmental change: Lessons from the Argentine courts 法院作为社会环境变革的舞台：阿根廷法院的经验教训
IF 1.4 2区 社会学
European Law Journal Pub Date : 2024-02-28 DOI: 10.1111/eulj.12485
Asmaa Khadim
{"title":"Courts as an arena for socioenvironmental change: Lessons from the Argentine courts","authors":"Asmaa Khadim","doi":"10.1111/eulj.12485","DOIUrl":"10.1111/eulj.12485","url":null,"abstract":"<p>Trends in the Argentine courts indicate a judicial preference towards flexibility in light of possibly serious environmental consequences, particularly in relation to mining. Through a liberal interpretation of constitutional provisions where collective environmental rights are threatened, the courts have expanded access to justice, leading some to view the Argentine judiciary as “interventionist” or “political”. However, judicial decisions emphasise compliance with constitutional mandates without necessarily encroaching on policy-making realms. The constitutionalisation of environmental rights has had a strong influence on the judiciary's approach, but in combination with other factors, particularly civic mobilisation, institutional changes and an evolving public ethos on environmental protection. Proactive judicial engagement with the full extent of its powers to ensure that policy-makers meet their constitutionally mandated obligations can compel policy-makers to address sustainability issues and rethink strategies. This positioning of the judiciary as a catalyst for more effective environmental governance offers useful insights for European courts.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"29 3-6","pages":"294-311"},"PeriodicalIF":1.4,"publicationDate":"2024-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12485","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140019623","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
The collective welfare dimension of dark patterns regulation 黑暗模式监管的集体福利维度
IF 1.4 2区 社会学
European Law Journal Pub Date : 2024-01-02 DOI: 10.1111/eulj.12478
Fabiana Di Porto, Alexander Egberts
{"title":"The collective welfare dimension of dark patterns regulation","authors":"Fabiana Di Porto,&nbsp;Alexander Egberts","doi":"10.1111/eulj.12478","DOIUrl":"10.1111/eulj.12478","url":null,"abstract":"<p>Dark Patterns are interface design elements that can influence users' behaviour in digital environments. They can cause harm, not only on an individual but also a collective level, by creating behavioral market failures, reducing trust in markets and promoting unfair competition and data dominance. We contend that these collective effects of Dark Patterns cannot be tackled by existent laws, and thus call for policy intervention. This article reviews how existing and proposed laws in Europe and the US, namely the EU Digital Services Act and Digital Markets Act as well as the U.S. DETOUR and AICO Acts, address these collective dimensions of welfare and add to existing protection. We find that the novel legislative measures attain that goal to varying degrees. However, the collective welfare perspective may prove useful to both support a risk-based approach to the enforcement and provide guidance as to which practices should be addressed as priority.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"29 1-2","pages":"114-141"},"PeriodicalIF":1.4,"publicationDate":"2024-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12478","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139376411","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Did the PNR judgment address the core issues raised by mass surveillance? PNR 判决是否解决了大规模监控提出的核心问题？
IF 1.4 2区 社会学
European Law Journal Pub Date : 2024-01-02 DOI: 10.1111/eulj.12480
Douwe Korff
{"title":"Did the PNR judgment address the core issues raised by mass surveillance?","authors":"Douwe Korff","doi":"10.1111/eulj.12480","DOIUrl":"10.1111/eulj.12480","url":null,"abstract":"<p>This article looks at three main issues raised by the PNR scheme: (i) the base-rate fallacy and its effect on false positives; (ii) built-in biases; and (iii) opacity and unchallengeability of the decisions generated, and at whether the Court has properly addressed them. It concludes that the AG and the Court failed to address the evidentiary issues including the base-rate fallacy—a lethal defect. It also finds that neither the Member States nor the Commission have even tried to assess whether the operation of the PNR Directive has resulted in discriminatory outputs or outcomes; and that the Court should have demanded that they produce serious, verifiable data on this, including on whether the PNR system has led in practice to discrimination. But it also finds that the AG and the Court provided important guidance on the third issue, in that they made clear that the use of unexplainable and hence unreviewable and unchallengeable “black box” machine-learning artificial intelligence (ML/AI) systems violates the very essence of the right to an effective remedy. This means that any EU Member State that still uses such opaque ML/AI systems in its PNR screening will be in violation of the law.</p>","PeriodicalId":47166,"journal":{"name":"European Law Journal","volume":"29 1-2","pages":"223-236"},"PeriodicalIF":1.4,"publicationDate":"2024-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://onlinelibrary.wiley.com/doi/epdf/10.1111/eulj.12480","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139376353","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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