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Über dieses Buch

This book presents a variety of articles on contemporary issues in environmental law by eminent university professors of environmental law, international public law, European Union law, and comparative law in Europe and Japan. It is the first book in the field of environmental law based on the results of international conferences and research activities supported by the European Union delegation in Japan.
Current essential and global topics such as principles of environmental law, climate change, biodiversity, ethics pertaining to animal rights , nuclear safety regime after Fukushima, environmental impact assessments, protecting international waters, genetically-modified organisms, and implementing international instruments, and EU rules at the national level are discussed in light of the 2009 Treaty of Lisbon and other recent international treaties, by comparing the approaches taken by the EU, European countries, and Japan.
As environmental law is not just a national issue but also a global one, it is important to understand and analyse various aspects of current environmental issues. This book is a response to such needs, and represents the joint work of five Japanese and four European (two German and two Italian) professors who have succeeded in creating something that is both unique and remarkable.



Chapter 1. Introduction: The Impact of the International and European Union Environmental Law on Japanese Basic Environmental Law

This chapter seeks to introduce this book by describing the interaction between international, European Union (EU) and Japanese environmental law. Specifically, it will show how international law influenced the EU environmental law and the Japanese Basic Environmental Law. This chapter explains how international and European environmental law impacted the Japanese Basic Environmental Law and, compares the Japanese and EU environmental law. In fact, the EU environmental law has been influenced by international environmental law, although the EU presently plays a leading role in shaping the world environmental law. This chapter will describe how the Japanese Basic Environmental Law and the EU environmental law have developed simultaneously, albeit sometimes differently. First, I briefly describe the development of the EU environmental law and movements in global environmental protection. Second, I describe the Japanese Basic Environmental Law based on the aspects of, history, structure and content.
Yumiko Nakanishi

Chapter 2. The Scope of the EU’s Competences on the Field of the Environment

This chapter attempts to demonstrate that the existence of a separate area of competence in the TFEU applicable to environmental issues has enabled the EU to develop a comprehensive policy concerning the protection of the environment. The Member States have allocated both internal and external powers to the institutions of the EU, but have at the same time insisted on keeping concurrent legislative powers on the relevant field of policy. Notwithstanding this, primary European law, characterized by the shared character of environmental competences, the right of the Member States to adopt more stringent measures, and the fact that the requirements and principles of environmental protection ought to be taken into account also when implementing other Union policies is concerned (cf. Article 11 TFEU), subscribes significant weight to the area of environmental competences. Yet the success of this field of policy does not only depend on the lawful implementation and enforcement by the Member States of the measures adopted by the Union institutions. Rather, it will be shown that not all legal difficulties were successfully eliminated by way of codification of written lists of areas of competence in Articles 3, 4 and 6 TFEU, and by distinguishing different vertical categories of competences.
Alexander Proelss

Chapter 3. Principles of EU Environmental Law: An Appraisal

By drawing on the relevant jurisprudence of the Court of Justice of the European Union (ECJ), secondary Union law and pertinent statements rendered by the Union institutions, this chapter assesses how the principles of environmental law codified in Article 191 (2) TFEU have been implemented by the institutions of the Union. While compared to the situation under public international, European law has so far not shown significant effects with regard to a substantiation of the principle of prevention, the source principle and the polluter-pays principle, it will be demonstrated that the Union institutions have shaped and operationalized the precautionary principle in a way that goes far beyond what is accepted on the international level. Significantly influenced by the European Commissionʼs Communication on the Precautionary Principle, the ECJ has assigned specific legal consequences to that concept that range from clarifying how the European legislator ought to deal with different levels of uncertainty and environmental risk to the need to observe the principle of proportionality when implementing precautionary measures. By assigning broad discretion to the institutions involved in the legislative process, it has furthermore contributed to the development of functional limitations to its own jurisdiction. Even though violations of the precautionary principle can only be asserted in situations where the Union institutions manifestly ignore the limitations of their powers, or where they manifestly exceed the limits of their discretion, the chapter submits that the approach pursued by the Union institutions has strengthened rather than weakened its normative relevance, and fostered its development into a fundamental principle of environmental law.
Alexander Proelss

Chapter 4. The Aarhus Convention and Cases of Non-compliance with Environmental Impact Assessment Requirements: The EU and Japan

An environmental impact assessment (EIA) is a process to ensure that a given decision’s impact on the environment will be considered before such a decision is made. The Aarhus Convention includes rules stipulating the form of judicial review for environmental assessment violations. In conjunction with the ratification of the Aarhus Convention, the EU has enacted laws necessary for its implementation, some of which involve amendments to the Environmental Impact Assessment Directive to add new rules on judicial review. After reviewing the judicial review standards introduced by the rules of the Aarhus Convention, this paper examines how the EU’s Environmental Impact Assessment Directive was amended by the Aarhus Convention, and how EU case law applies to the amended portions. In doing so, I hope to demonstrate that these standards will lead to new international standards in judicial review of environmental assessment violations that will constitute fundamentally new international standards from the perspective of international law. While EU efforts to address judicial review of environmental assessment violations are fairly advanced, Japan has been strongly criticized, in both academia and elsewhere, for its relatively slow response in these matters. The lethargy in Japan’s response can perhaps be attributed to the special nature of these new international standards. I will explore the implications of the new environmental assessment violation standards on international law introduced by the Aarhus Convention, while also addressing the state of judicial review of environmental assessment violations in Japan.
Yuko Minami

Chapter 5. Policies Towards Tackling Climate Change and Their Compatibility with the WTO

Japan and the EU have been implementing domestic measures to tackle climate change. Although measures such as technical standards, eco-labelling and emissions trade systems are expected to contribute towards cutting greenhouse gas emissions, they often evoke discussions regarding their compatibility with WTO regulations. Would an obligation to comply with the energy efficiency standards comprise a technical barrier to trade? Would free allocation of allowances under the emissions trade system be regarded as subsidies under the WTO Agreement on Subsidies and Countervailing Measures? Would border tax adjustments relate to the principle of Most Favoured Nations (MFN) or National Treatment (NT)? This study examines these issues from the perspective of WTO jurisprudence.
Kiyotaka Morita

Chapter 6. The Principle of Animal Welfare in the EU and Its Influence in Japan and the World

Measures on animal welfare have been developed since the 1970s, influenced by the European Conventions of the Council of Europe. While many measures on animal welfare have been adopted, there is no legal basis for animal welfare itself. The principle of animal welfare that considers animal welfare in formulating and implementing the Union’s policy, including common agricultural and internal market policy, is laid down in the declaration annexed to the Maastricht Treaty and now in Article 13 of the Treaty on the Functioning of the European Union (TFEU) after the Treaty of Lisbon, which is a provision of the general application. One of the EU measures on animal welfare is related to animal testing. The absolute ban on the marketing of cosmetic products based on animal testing from 11 March 2013 influenced the policies of Japanese companies. Furthermore, legislation regarding trade in seal products has affected third countries and has been contested at the World Trade Organization (WTO) level. Animal welfare is globally considered as public moral issue.
Yumiko Nakanishi

Chapter 7. Protecting Biodiversity in Europe: The Habitats and Birds Directives and Their Application in Italy in an Evolving Perspective

This chapter aims to analyse the EU Birds and Habitats Directives, dating back to 1979 and 1992 respectively, from an evolving perspective, stressing their role in the protection of biodiversity in Europe. In the first part of the chapter, we will argue that the European Court of Justice (ECJ) has played an important role in defining the balance between the feasibility of ‘human’ projects and the compelling need to protect habitats and species. The Court has developed a restrictive interpretation of the directives’ provisions, introducing derogations to the system of protection, and by virtue of its jurisprudence, it has stimulated the action of national legislators and judges in favour of biodiversity. In the second part of the chapter, we will analyse the transposition of both directives into the Italian legal system. In particular, we will focus on a recent case examined by the ECJ related to projects likely to affect protected habitats, and on an infringement procedure started against Italy concerning hunting. We will conclude that the balance between the protection of biodiversity and human activities refers to the interplay – not the opposition – between anthropocentrism and non-anthropocentrism; this balance needs to be achieved by judges on a case-by-case basis, in light of the principles of proportionality and precaution.
Sara De Vido

Chapter 8. The Challenge of Regulating Genetically Modified Organisms in the European Union: Trends and Issues

The regulation of genetically modified organisms (GMOs) has always been a tough challenge to the EU because of the public’s persistent hostility towards GMOs and genetically modified (GM) food and feed. In particular, the EU member states bowing to their populations’ concerns have continuously obstructed the authorisation processes for GMOs and GM food and feed. Since April 2015, member states may choose to opt-out from GMO cultivation, i.e. to restrict or prohibit the cultivation of authorised GM crop plants within their territory. Such opt-out measures, however, need to be justified by compelling grounds set forth in the new opt-out clause inserted into Directive 2001/18/EC. The interpretation and application of these compelling grounds raise intricate problems. Another delicate issue is the conformity of national GMO cultivation bans with primary EU law and WTO law. Finally, the recent development of new breeding techniques such as CRISPR-Cas casts the EU’s regulatory approach, i.e. the technique-based ‘process approach’, into serious doubt.
Hans-Georg Dederer

Chapter 9. The Proliferation of Marine Protected Areas Under International Law, European Union Law and Japanese Law

In this chapter, I describe existing international and regional rules on marine protected areas (MPAs), which are established to protect marine living resources and the marine ecosystem, including habitat, fauna and flora. First, I explain the international legal framework, including the United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD) and relevant regulations adopted by the International Maritime Organization (IMO); second, I explain European Union (EU) law, which prescribes MPAs; third, I briefly mention the legal framework for protecting the marine environment in Japan and fourth, I attempt to clarify the limitations of the existing legal framework from an implementation perspective and briefly mention the actions that could be taken for effective protection of the marine environment.
Chie Sato

Chapter 10. Environmental Damage Remediation in Japan: A Comparative Assessment

This article presents the birth and evolution of the legal framework governing the compensation for environmental damage in Japan along with a comparative assessment.
Legal systems cope with environmental pollution in many ways, and notions of environmental damage differ across the globe. This has an obvious effect on how and to what extent environmental damage is compensated. Before 2004, some EU member states adopted a notion of environmental damage based on the idea of the environment as a common good and public authority as responsible for its remediation. This notion was formally adopted by the EU environmental liability Directive 2004/35/EC.
The central part of the analysis shows how environmental damage is perceived in Japan. While Japan and its population have faced cases of environmental pollution similar to those of the West, the responses of its legal system have been quite different. Japan has adopted the notion of kogai as the cornerstone of its environmental legislation, where damage to the environment itself is not distinct from the damage suffered by the victims of environmental pollution.
The final section of this chapter presents an interpretation of the Japanese legal response to environmental damage and its significance for the debate about the Japanese attitude towards litigation and the so-called ‘Japanese legal consciousness’.
Andrea Ortolani

Chapter 11. Challenges and Prospects for the Nuclear Safety Regime in Japan and in the European Union After Fukushima

Nuclear safety falls under the scope of national sovereignty. In the historical course of nuclear technology department, several accidents and incidents have occurred and thus more efforts have been made to achieve a higher level of nuclear safety. Together with the IAEA Safety Standard and the relevant international conventions, such as the Convention on Early Notification of a Nuclear Accident, the Convention on Assistance in the Cased of a Nuclear Accident or Radiological Emergency, and the Convention on Nuclear Safety, a nuclear safety regime has been developed and elaborated at not only the national level, but the regional and international levels as well. On 11 March 2011, the Great East Japan Earthquake of magnitude 9.0 and the subsequent tsunami was catastrophic to the region and the Fukushima Daiichi nuclear power station. This chapter describes the challenges, developments and prospects for the nuclear safety regimes in Japan and in the European Union after the Fukushima event.
Kyoji Kawasaki, Ryoko Kusumi


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