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PERSONA GRATA
Professor Bernard Vanheusden:
CONTEMPORARY ISSUES IN INTERNATIONAL ENVIRONMENTAL LAW
An interview with an Associate Professor of Environmental Law, Law Faculty, Hasselt University (Belgium), Ph.D. in Law Bernard Vanheusden.

Professor Bernard Vanheusden

№ 6 (97) 2016

Professional Background:

Bernard Vanheusden – Ph. D. in Law, Associate Professor of Environmental Law, Law Faculty, Hasselt University (Hasselt, Belgium). Holds a Bachelor’s degree in Philosophy from the University of Leuven (KU Leuven, Leuven, Belgium). Holds a Bachelor’s and a Master’s degree in Law (KU Leuven, Leuven, Belgium). Through the Erasmus exchange program for a year studied at the University of Bologna (Bologna, Italy). In 2007 defended a PhD thesis «Brownfields Redevelopment: naar een duurzame stadsontwikkeling. Rechtsvergelijkende analyse betreffende de sanering van sites» («Brownfields Redevelopment: towards a sustainable urban development. Comparative legal analysis concerning the remediation of sites»). An author of more than 90 scientific publications in Dutch and in English (including, a handbook on environmental law, research articles and journal country reports on Belgium). A scientific supervisor for Master and PhD research projects at the Hasselt University (Hasselt, Belgium). Co-founder of the European Environmental Law Forum (EELF) and a member of the Managing Board of the EELF. A member of the International Union for Conservation of Nature (IUCN) World Commission on Environmental Law. A member of the Specialist Group on Sustainable Soil and Agricultural Systems within the IUCN World Commission on Environmental Law. Editor-in-Chief of the Belgian journal «Milieu– en Energierecht» («Environmental and Energy Law»). Associate editor of the «Journal for European Environmental and Planning Law» («JEEPL»). Working languages – Dutch, English, French, German, and Italian.

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Bernard Vanheusden– Professor, thank you for taking your time to discuss the contemporary issues in international environmental law with the readers of the «Eurasian Law Journal». Could we, please, start with a general question -  why have you chosen to become a lawyer? What events have influenced your decision? Why environmental law?

– Actually, my father was a lawyer, and my older sister and my brother also studied law, so I guess I was a bit predestined to study law. However, I first started with Philosophy, but after my bachelor’s degree, I realized that I wanted to study something with which I could contribute much more to policy making. My interest in environmental policy and law grew during my master’s studies, when I was able to select several environmental and planning law courses. I have always been really concerned about the environment and what I like about environmental law is that it is one of the legal branches that is very much linked to daily societal problems (and this at the local, regional, national and international level). It also requests a multidisciplinary view to fully understand environmental issues.

– Professor, being young as you are, you have already been appointed as a Professor. You have a significant list of publications! Moreover, you are a father of 3 children! How do you manage everything? Where do you find time and energy?

– Good question. It is indeed not easy to find a good balance between work and private life, and some days the combination is more difficult than other. I try not to travel too much, in order to be at least home in the evening (and also for ecological reasons). But I really like my work, and my position offers at the same time a lot of opportunities and a lot of academic freedom to select between the opportunities.

–  Could you, please, say a few words about your participation in the recent environmental law conferences or other significant events?

– I am a co-founder of the European Environmental Law Forum (EELF) and a member of the Managing Board of the EELF (www.eelf.info). The EELF is a non-profit initiative of environmental law scholars and practitioners from across Europe aiming to support intellectual exchange on the development and implementation of international, European and national environmental law in Europe. One of the activities of the EELF is an annual conference. In 2014 I organized the Second EELF Conference in Brussels. This was the largest conference that I organized with around 150 participants from all over Europe and with 2, 5 days of presentations and an excursion to the European Parliament.

Besides this, I try to organize on a regular basis (at least once per year) national and international conferences. In 2015 I was involved for example in a conference at the Vyatka State University in Kirov (Russia) and I also gave a presentation at the MGIMO University in Moscow (Russia). This was a very nice and interesting experience. The students were very much interested in European environmental law and policy and they had a lot of questions. In May 2016 the colleagues from the Vyatka State University and MGIMO University then came to visit Hasselt University and gave several lectures to our students and colleagues as well as the broad public. The cooperation with the Vyatka State University and the MGIMO was organized by one of my PhD researchers, Yelena Gordeeva. She researches forests under international climate change law.

The past few years I was actually involved in several panels and I have given numerous presentations, in Belgium as well as abroad (Venice, Dresden, Portland, Prague, St. Louis, Maastricht, Selfoss, Boston, Barcelona, New Haven, Jeju, Groningen, Aix-en-Provence).

– In your opinion, which international processes and/or writings of the most highly qualified publicists have influenced the development of the international environmental law?

– It is difficult to say which authors have influenced international environmental law in general, but I think that authors such as Ludwig Krämer and Alexandre Kiss and Dinah Shelton have definitely influenced international environmental law. A good benchmark is also the winners of the Elizabeth Haub Prize for Environmental Law (<http://www.juridicum.su.se/ehp/>).

– Professor, have the international environmental initiatives been widely accepted from their start? Or have there been conflicting points of view towards the development of environmental law? And which point of view are you in favor of?

– The development of environmental law took quite some time, but it was accelerated in the beginning of the 1970s through various reasons (some large environmental disasters, the first UN Conference on the Human Environment in 1972, the start of environmental associations such as Greenpeace in 1971…). Of course there are often conflicting opinions on the need for environmental law. That is also why it often takes several years to adopt new policies. We clearly see that now with regard to climate change. Personally, I am in favor of a strong, severe environmental law. We cannot rely only on the good intentions of the public.

Which most important/significant environmental law developments are taking place now?

– Definitely the most important current developments concern climate law and the negotiations for a new international climate agreement. The Conference of Parties (COP) 21 to the United Nations Framework Convention on Climate Change (UNFCCC) in Paris in 2015 is seen as an important breakthrough. The COP lead to the Paris Agreement. This Agreement aims at enhancing the implementation of the UNFCCC through:

«(a) Holding the increase in the global average temperature to well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;

(b) Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production;

(c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.»

Interesting with regard to climate change is the fact that in several countries citizens are starting legal claims against their state for their failing policy. This has lead for example in the Netherlands to a judgment in 2015 that received quite some international attention. In this judgment the judge indeed convicts the Dutch government because it does not do as much as it should do to combat climate change. An appeal is however pending, so it is still too early to draw final conclusions. Also in Belgium a very similar case is pending.

Other important developments concern desertification, deforestation in general and the destruction of tropical rain forests in particular, marine plastics pollution, international trade in endangered species (i.e. ivory trade), shipment of hazardous wastes to and dumping in Third World countries, and for more and more countries also access to clean fresh water. Interesting is also the search in many countries to shift from fossil fuels and nuclear energy (certainly after what happened in Fukushima (Japan) in 2011) towards renewable energy and energy efficiency.

– Could you, please, say a few words about the role of the Russian Federation, participating in the international environmental (law) processes?

– The Russian Federation plays a very important role at the international level. For example, with regard to climate change, together with China, the US, India, Canada, Indonesia and Australia, the Russian Federation is one of the highest emitters of greenhouse gases. Together they generate more than half of the world’s greenhouse gas emissions. So it is very important to include all of these countries in an international agreement. On top of that, the Russian Federation has the largest surface of forested areas. Given the important link between forests and climate change, it is important that these forests are well protected. It will also be interesting to see in the next few years how a country such as the Russian Federation will deal with the general shift towards more renewable energy and more energy efficiency.

Could you, please, say a few words about the state of environment in the EU?

– To have a good idea about the state of the environment in the EU, there is a very interesting and useful report published in 2015 by the European Environment Agency (EEA). It is called the State of the Environment Report (SOER) and it is published online (< http://www.eea.europa.eu/soer> ). The EEA is an agency of the EU and it provides sound, independent information on the environment.

According to the EEA in the SOER, Europe’s natural capital is not yet being protected, conserved and enhanced in line with the ambitions of the 7th Environment Action Programme (2013-2020). Reduced pollution has significantly improved the quality of Europe’s air and water. But loss of soil functions, land degradation and climate change remain major concerns, threatening the flows of environmental goods and services that underpin Europe’s economic output and well-being.

A high proportion of protected species (60%) and habitat types (77%) are considered to be in unfavourable conservation status, and Europe is not on track to meet its overall target of halting biodiversity loss by 2020, even though some more specific targets are being met. Looking ahead, climate change impacts are projected to intensify and the underlying drivers of biodiversity loss are expected to persist.

Turning to resource efficiency and the low-carbon society, the short-term trends are more encouraging. European greenhouse gas emissions have decreased by 19% since 1990 despite a 45% increase in economic output. Other environmental pressures have also decoupled in absolute terms from economic growth. Fossil fuel use has declined, as have emissions of some pollutants from transport and industry. More recently, the EU's total resource use has declined by 19% since 2007, less waste is being generated and recycling rates have improved in nearly every country.

Regarding environmental risks to health, there have been marked improvements in the quality of drinking water and bathing water in recent decades and some hazardous pollutants have been reduced. However, despite some improvements in air quality, air and noise pollution continue to cause serious health impacts, particularly in urban areas. In 2011, about 430 000 premature deaths in the EU were attributed to fine particulate matter (PM2.5). Exposure to environmental noise is estimated to contribute to at least 10 000 premature deaths due to coronary heart disease and strokes each year. And growing use of chemicals, particularly in consumer products, has been associated with an observed increase of endocrine diseases and disorders in humans.

– And what about Belgium? What is the state of environment in your country?

– With regard to the state of the environment in Belgium, the situation is nuanced. For certain topics the situation is very good. This is for example the case for waste and our efforts to see waste as potential new materials. We are one of the countries, if not the country, with the highest amounts of, first, selective collection of waste (e.g. a separate collection for paper, glass, organic waste, plastics, batteries…) and, second, recycling of waste. The Flanders’ Materials Programme has just won an award at the World Economic Forum in Davos in January 2016 (<https://thecirculars.org/finalists>). Also our soil remediation legislation is internationally seen as a very good one. On the other hand, we still have serious problems with the air and water quality and with nitrates (because we have quite a lot of large animal farms).

Our environmental law is mainly developed since the 1990s. The past few years the government has put a lot of time and effort in improving the enforcement of environmental law as well as in accelerating our procedures (e.g. for licensing).

– How have environmental rights been protected in the EU?

– Environmental rights are protected through various ways. In the first place classically through public and private enforcement of national law, if necessary by bringing a case before national courts. EU citizens on average definitely know their way to national courts.

On top of that, the European Commission controls compliance with EU (environmental) law. European citizens can always file a complaint to the Commission. As already mentioned, the Commission can bring a Member State before the European Court of Justice.

In serious cases, when environmental harm is seen as a violation of a human right, European citizens can also go to the European Court of Human Rights, but only after they have first gone through the domestic court system.

What are, in your opinion, the significant recent developments of the EU environmental law and policy?

– I currently see three main developments in EU environmental law and policy:

- of course, in the first place the development of measures to achieve the goals regarding the reduction of greenhouse gas emissions under the second commitment period of the Kyoto Protocol. The EU has agreed upon the so called 2020 package. This package sets three key targets to be achieved by 2020 (20% cut in greenhouse gas emissions (from 1990 levels); 20% of EU energy from renewables; 20% improvement in energy efficiency). There is also already a package with measures for 2030.

- in the second place, in 2013 the European Commission proposed a Clean Air Policy Package to further reduce emissions of air pollutants until 2030. The legislative proposals are presently being considered by the European Parliament and Council.

- finally the European Commission adopted at the end of 2015 an ambitious Circular Economy Package, which includes revised legislative proposals on waste to stimulate Europe's transition towards a circular economy. These proposals will become law in the near future.

– And the final question about the recent referendum on the «Brexit». In your opinion, will it have an impact on EU environmental law?

– I do not think that the “Brexit” will have a huge impact on EU environmental law. In general, the UK has never been a frontrunner with regard to EU environmental law. They have often tried to amend or even block new legislation. So if it will have any impact, I think it will be more for the benefit of environmental law, because there will be less resistance.

On the other hand, a more interesting question, be it less relevant for the EU as such, will be to see how EU environmental law will still continue to influence UK environmental law. As in all the Member States, also in the UK most of the legislation is derived from the EU (from directives that have been implemented in the UK). On top of that, various EU regulations are directly applicable in the UK (Ecolabel, REACH, CLP, Biocidal products, Shipments of waste,...). At the end of the Brexit process all these EU directives and regulations will cease to apply to the UK. Therefore, the UK will need to perform a serious review of its environmental law in the next few years. And what happens with the relevance of the EU case law? And also after the split the UK will continue to work with the EU and will have to follow certain EU environmental standards. Obviously, the impact of the split with the EU will be a very interesting research field in the coming years.

– Professor, thank you for sharing with the readers of the «Eurasian Law Journal» your professional experience and your point of view with regard to the contemporary issues in international environmental law. On behalf of the journal, we wish you a lot of success in your future career and the important endeavors on the protection of our environment. Would you like to say a few words to the readers of the journal?

– I hope that an interview as this one, for which I am very grateful to the editors of the «Eurasian Law Journal», can strengthen the dialogue and the exchange of expertise between the EU and the Russian Federation.

The exchanges that we are setting up in the legal field with the Vyatka State University and the MGIMO University might maybe also encourage other academics to look over the borders. I am convinced that it is very important to include in legal research a comparative part, where we learn about and compare other legal systems.

I wish all readers a very fruitful year.

Interviewer:


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