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Article

Restorative justice conferencing in Australia and New Zealand

Application and potential in an environmental and Aboriginal cultural heritage protection context

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords restorative justice conferencing, environmental offending, Aboriginal cultural heritage offending, connection to the environment
Authors Mark Hamilton
AbstractAuthor's information

    Indigenous people may suffer harm when the environment, sacred places and sacred objects are destroyed or damaged. Restorative justice conferencing, a facilitated face-to-face dialogue involving victims, offenders, and pertinent stakeholders has the potential to repair that harm. This article explores the use of conferencing in this context with case law examples from New Zealand and New South Wales, Australia. As will be discussed, the lack of legislative support for conferencing in the Land and Environment Court of New South Wales means it is doubtful that such conferencing will develop past its current embryonic state. As well as using restorative justice conferencing to repair harm from past criminality, this article suggests that further research should explore the use of restorative justice to resolve present conflict, and prevent future conflict, where there is a disconnect between non-Indigenous use of the environment and Indigenous culture embedded in the environment.


Mark Hamilton
Mark Hamilton, PhD, is a lawyer and teaching fellow in the Criminology and Criminal Justice programme and the Law programme at the University of New South Wales, Sydney, Australia. Contact: mark.hamilton@unsw.edu.au.
Article

A maximalist approach of restorative justice to address environmental harms and crimes

Analysing the Brumadinho dam collapse in Brazil

Journal The International Journal of Restorative Justice, Issue 1 2021
Keywords environmental law, maximalist approach, restorative justice principles and concepts, decision-making process, sanctioning rules
Authors Carlos Frederico Da Silva
AbstractAuthor's information

    In this article, the author analyses court cases arising from the rupture of the mining tailings dam in the city of Brumadinho, Brazil, on 25 January 2019. In a civil lawsuit context, legal professionals recognised damage to people and the environment during hearings involving a judge, prosecutors, lawyers and corporate representatives. The centrality of the victims’ interests and the need for remedial measures prevailed in the agreements signed mainly to provide urgent relief and restore damage to the ecosystem. In the criminal lawsuit dealing with the same facts, there have not yet been acquittals, non-prosecution agreements or convictions. By employing a socio-legal approach to contrast different types of legal reasoning, this article explores the possibilities of restorative responses in civil proceedings and explains the lack of them in criminal justice. In highlighting some characteristics of punishment theories that hinder a possible restorative justice approach, the article offers a critique of a penal system mostly linked to argumentative competition rather than persuasive conflict resolution. The author argues that jurisprudence should address transdisciplinary concepts, such as responsive regulation, restorative efforts, proportionality and individualisation of punishment. The discussion can shed light on the decision-making process to allow environmental restorative justice responses to crimes.


Carlos Frederico Da Silva
Carlos Frederico Braga Da Silva is a PhD researcher associated to the Graduate School of Sociology at the Federal University of Minas Gerais, Brazil, and to the Canadian Chair of Legal Traditions and Penal Rationality, Faculty of Social Sciences, Department of Criminology, University of Ottawa, Canada. He also works as a state judge in Belo Horizonte, Minas Gerais, Brazil. Contact author: carlosfrebrasilva@gmail.com.
Article

Access_open Can Non-discrimination Law Change Hearts and Minds?

Journal Erasmus Law Review, Issue 3 2020
Keywords law and society, social change, discrimination, non-discrimination law, positive action
Authors Anita Böcker
AbstractAuthor's information

    A question that has preoccupied sociolegal scholars for ages is whether law can change ‘hearts and minds’. This article explores whether non-discrimination law can create social change, and, more particularly, whether it can change attitudes and beliefs as well as external behaviour. The first part examines how sociolegal scholars have theorised about the possibility and desirability of using law as an instrument of social change. The second part discusses the findings of empirical research on the social working of various types of non-discrimination law. What conclusions can be drawn about the ability of non-discrimination law to create social change? What factors influence this ability? And can non-discrimination law change people’s hearts and minds as well as their behaviour? The research literature does not provide an unequivocal answer to the latter question. However, the overall picture emerging from the sociolegal literature is that law is generally more likely to bring about changes in external behaviour and that it can influence attitudes and beliefs only indirectly, by altering the situations in which attitudes and opinions are formed.


Anita Böcker
Anita Böcker is associate professor of Sociology of Law at Radboud University, Nijmegen.
Conference Reports

Anniversary Conference on the Occasion of the 80th Birthday of János Bruhács

Report on the ‘Anniversary Conference on the Occasion of the 80th Birthday of János Bruhács’ Organized by University of Pécs, 4 October 2019, Pécs

Journal Hungarian Yearbook of International Law and European Law, Issue 1 2020
Keywords conference report, János Bruhács, humanitarian law, environmental law, fragmentation
Authors Ágoston Mohay and István Szijártó
AbstractAuthor's information

    On 4 October 2019, the Department of International and European Law at University of Pécs, Faculty of Law organized an anniversary conference to celebrate the 80th birthday of professor emeritus János Bruhács. The conference held in Pécs brought together speakers representing universities and research institutions from all over Hungary. The four sections of the conference dealt with topics ranging from international humanitarian law to international environmental law and the question of fragmentation of the international legal order. The organizers sought to address issues, which represented important fields of research in the works of Professor Bruhács.


Ágoston Mohay
Ágoston Mohay: associate professor of law, University of Pécs.

István Szijártó
István Szijártó: law student, University of Pécs.
Article

Access_open The Dutch International Responsible Business Conduct Agreements

Effective Initiatives?

Journal Erasmus Law Review, Issue 4 2019
Keywords IRBC Agreements, effectiveness, OECD due diligence, access to remedy
Authors Martijn Scheltema
AbstractAuthor's information

    This contribution analyses the effectiveness of the Dutch International Responsible Business Conduct (IRBC) agreements and suggests some avenues for improvement. Several challenges in connection with effectiveness have been identified in evaluations of the IRBC agreements, and these are used as a starting point for the analysis. The focus is on three themes: (i) uptake, leverage and collaboration; (ii) implementation of OECD due diligence including monitoring and (iii) access to remedy. This contribution shows that low uptake may not be a sign of ineffectiveness per se, although in terms of leverage a sufficient number of participants or collaboration between agreements seems important. In connection with due diligence, it is recommended to align the implementation of OECD due diligence. Furthermore, an effective monitoring mechanism by a secretariat, as is currently implemented in the Textile agreement only, is most likely to bring about material changes in business behaviour. Other types of supervision seem less effective. Access to remedy poses a challenge in all IRBC agreements. It is recommended that the expectations the agreements have on access to remedy be clarified, also in connection with the role of signatories to the agreements in cases where they are directly linked to human rights abuse. Furthermore, it is recommended that a dispute resolution mechanism be introduced that enables complaints for external stakeholders against business signatories, comparable to that of the Textile agreement. However, rather than implementing separate mechanisms in all agreements, an overarching mechanism for all agreements should be introduced.


Martijn Scheltema
Martijn Scheltema is Professor of Private law at Erasmus School of Law, Erasmus University Rotterdam.
Article

Access_open Due Diligence and Supply Chain Responsibilities in Specific Instances

The Compatibility of the Dutch National Contact Point’s Decisions With the OECD Guidelines for Multinational Enterprises in the Light of Decisions Made by the UK, German, Danish and Norwegian National Contact Points

Journal Erasmus Law Review, Issue 4 2019
Keywords due diligence, supply chain, OECD, NCP, specific instance
Authors Sander van ’t Foort
AbstractAuthor's information

    Since the introduction of a human rights chapter in the 2011 OECD Guidelines for Multinational Enterprises, National Contact Points (NCPs) have been increasingly dealing with specific instances referring to human rights violations by companies. According to the Organisation for Economic Cooperation and Development (OECD), the human rights provisions are the most cited provisions of the Guidelines. Specific instances include allegations such as a company’s failure to implement human rights due diligence, to apply the principles of free, prior and informed consent, to take supply chain responsibility, and/or to comply with the right to cultural heritage. Of all topics, human rights due diligence and human rights supply chain responsibilities are most commonly referred to in complaints based on the Guidelines. This article focuses on how NCPs have handled these topics of human rights due diligence and supply chain responsibility in specific instances. The Dutch NCP has been selected because it is celebrated in literature as the ‘gold standard’ because of its composition including independent members, its forward-looking approach, and because it is one of the most active NCPs in the world. All decisions of the Dutch NCP concerning these two topics are analysed in the light of the decisions of four other NCPs (UK, Denmark, Germany and Norway). A doctrinal methodology is used to analyse similarities and differences between the argumentations of the five NCPs.


Sander van ’t Foort
Sander van ’t Foort is Lecturer at Nyenrode Business University.

    My paper advocates for the creation of a legal policy aimed at accelerating the initiation of the “Space Debris Removal Business” as quickly as possible. This policy is focused on government compensation for situations where the damage in outer space exceeds an insured amount. The policy will cover any damage derived from active orbital services, including Space Debris Removal.
    There is a common understanding across the globe that Space Debris Remediation is becoming necessary to keep space activities safe and sustainable. It would be ideal if a core set of laws were applicable to all nations. However, because Space Debris is increasing rapidly, we cannot wait for the formulation of international standards.
    Therefore, I would like to propose a measure to minimize the barriers of entry into the “Space Debris Removal Business,” which features a compulsory insurance and governmental compensation system (by referring the system in the field of rocket launch) to encourage private companies to conduct Space Debris Removal as a part of their core businesses.
    To sum up, until the moment an international rule is established, each country should proceed in haste to implement legislation for eliminating space debris. As industrial technologies develop, I expect to see more nations voluntarily remove broken satellites as well as upper stages of rockets that they themselves launched. I hope to support a burgeoning international debate on this issue.


Mihoko Shintani
Partner, Lawyer, TMI Associates, 23rd Floor, Roppongi Hills Mori Tower, 6-10-1 Roppongi, Minato-ku, Tokyo 106-6123, Japan & Attorney-at-Law, Japan Aerospace Exploration Agency (JAXA), Ochanomizu Sola City, 4-6 Kandasurugadai, Chiyoda-ku, Tokyo 101-8008 Japan.
Article

Out into the Dark: Removing Space Debris from the Geostationary Orbit

Journal International Institute of Space Law, Issue 6 2019
Keywords Space law, IADC, remediation, active space debris removal, Geostationary Orbit, GEO region, space debris mitigation guidelines, re-orbit guideline, Outer Space Treaty, Liability Convention
Authors Martha Mejía-Kaiser
AbstractAuthor's information

    During the first decades of placing space objects in the Geostationary Orbit, satellite owners and operators abandoned space objects at their end-of-life, or just freed the slot by removing their satellites with the last kilograms of fuel. Also rocket stages that propelled geostationary satellites were abandoned therein. Due to orbital perturbations at about 36,000 km, objects that do not have station-keeping systems can drift into the slots of neighboring satellites and disturb their operation. Space debris objects at this altitude take at least one million years to naturally de-orbit and re-enter the Earth’s atmosphere. The accumulation of space debris objects that permanently cross the Geostationary Orbit is a growing hazard to operational satellites. Researchers at the IADC who published a set of Space Debris Mitigation Guidelines in 2002, identified the Geostationary Orbit as a ‘protected region’. One Mitigation Guideline recommends to re-orbit space objects that are reaching their end-of-life outside of this protected area. A growing number of States and international organizations reflect the IADC Mitigation Guidelines in national legislation, recommendations and standards. However, there is still an increase of large space debris objects in this area. Since it is not realistic to wait (up to one million years) for the natural deorbiting of these space objects, remediation measures need to be initiated, such as debris removal with external systems. This article describes the State practice of re-orbiting and proposes a strategy for debris removal to maintain a sustainable access and use of the Geostationary Orbit.


Martha Mejía-Kaiser
PhD in Political and Social Sciences, Universidad Nacional Autónoma de México. Member of IISL Board of Directors. Independent Researcher.

Chuck Dickey
TCTB, LLC, P. O. Box 591031, Houston, TX 77259.

    On-orbit Servicing (OOS) will revolutionize the satellite industry, by offering tools that enable life-extension and debris remediation. However, the advanced technology heightens the risk of liability for damages and the overall perceived security in space. In addition, international OOS missions challenges the traditional concepts in the international space Treaties. Whilst OOS is not prohibited under the current legal framework, it is clear that the legal framework needs to be supplemented in order to address the new challenges. Based on the findings of the regulatory landscape, the paper offers various suggestions as to how the legal and political challenges can be addressed. These suggestions include meeting security concerns through a greater sense of transparency and trust, enabled by for example more information on the locations of the satellites, and rules for OOS behaviour.


Thea Flem Dethlefsen
LLM (Adv.) candidate in Air and Space Law, International Institute of Air and Space Law, Leiden University.

Mary E. McNally MSc, DDS, MA
Mary E. McNally, MSc, DDS, MA, is a Professor at Dalhousie University Faculty of Dentistry in Halifax Nova Scotia, Canada. Contact author: mary.mcnally@dal.ca. Acknowledgement: The author wishes to acknowledge and thank members of the Dalhousie University Dentistry Class of 2015 whose experiences are providing a foundation from which others may learn and benefit.
Article

“Leviathan Lite” - Towards a Global Stewardship Organization for Space Domain Awareness, Conduct, And Remediation

Journal International Institute of Space Law, Issue 8 2018
Keywords Satellite Regulation, Space Traffic Management, Social Contract
Authors Harrison E. Kearby, John M. Horack and Elizabeth K. Newton
AbstractAuthor's information

    This paper examines the dimensions, legal and policy implications, and ramifications of a proposed International Space Situational Awareness Organization (ISSAO), whose charter would be to provide leadership for international and collaborative stewardship of the space environment in LEO and beyond. As ever more satellites, rockets, and space stations are launched into space, the need for debris tracking, debris remediation, orbital traffic deconfliction, and definitions of ‘best practices in caretaking the space environment’ grow. Current organizations and programs are successful, at least to some extent, in educating the world on the potential dangers of space debris, and the importance of space situational awareness, yet they have little legal or political standing to provide enforcement, compliance, or remediation. Many global discussions related to space situational domain awareness have called for a cooperative international effort to create guidelines, if not charter an organization tasked with the stewardship of the space environment. Here, we examine important precedents set forth in international law and cooperation, and apply these to a proposed comprehensive body to steward space situational awareness and debris mitigation. We elucidate the requirements, enforceable powers, and probable limits of such an organization as well as important questions to be answered prior to establishment of such a body.


Harrison E. Kearby
Department of Mechanical and Aerospace Engineering, John Glenn College of Public Affairs, The Ohio State University.

John M. Horack
Department of Mechanical and Aerospace Engineering, The Ohio State University.

Elizabeth K. Newton
John Glenn College of Public Affairs, The Ohio State University.
Editorial

Guest Editorial

Journal European Journal of Law Reform, Issue 1 2016
Authors George D. Kyriakopoulos
Author's information

George D. Kyriakopoulos
Lecturer in International Law, School of Law, National and Kapodistrian University of Athens.
Article

Space Debris Remediation, Its Regulation and the Role of Europe

Journal European Journal of Law Reform, Issue 1 2016
Keywords space debris, remediation, European Union, European Space Agency, International Code of Conduct for Outer Space Activities
Authors Jan Wouters, Philip De Man and Rik Hansen
AbstractAuthor's information

    Ever since the launch of the first space object, discarded bits and pieces ranging from disused payloads and spent upper stages to single bolts and tiny flakes of paint have been cluttering outer space, making valuable and widely used orbits and trajectories to and from earth increasingly unsafe for future use. The response of the international community to this immediate threat to the sustainable use of outer space has been slow and haphazard and remains limited to non-binding guidelines and technical recommendations for space debris mitigation. Recent events such as the 2007 Chinese ASAT test and the 2009 collision between an active American and an in-operational Russian communications satellite demonstrate that more needs to be done in order to develop a strong international regime on active debris remediation. Given the complexities of these issues and the lengthy nature of international negotiations, one should not expect a comprehensive legal regime for space debris mitigation and remediation to materialize any time soon. As it is in the own interest of its users to preserve outer space for future exploration and use, the regulation of debris mitigation by space agencies may well prove a valuable alternative as a starting point for binding remediation rules. Since new international initiatives in this respect are lacking, the present article looks at the various space actors in Europe and at the role some of them may play in developing global rules of space debris remediation.


Jan Wouters
Jean Monnet Chair ad personam EU and Global Governance, Full Professor of International Law and International Organizations and Director of the Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven.

Philip De Man
Project Manager, Leuven Centre for Global Governance Studies, University of Leuven.

Rik Hansen
Doctoral Researcher at the Leuven Centre for Global Governance Studies and the Institute for International Law of the University of Leuven.
Article

COSPAR Recommendations in a New Context?

Environmental Aspects of Space Mining

Journal International Institute of Space Law, Issue 2 2016
Authors Mahulena Hofmann
Author's information

Mahulena Hofmann
Professor, JUDr. CSc., University of Luxembourg, Luxembourg, Mahulena. Hofmann@uni.lu. The author would like to thank Dr. Petra Rettberg (DLR) and Prof. John Rummel, PhD. (East Carolina University) for their very valuable information and advice.

Peter Stubbe
German Aerospace Center (DLR), Germany
Article

Access_open Report of the 57th Colloquium on the Law of Outer Space Toronto, Canada, 2014

Journal International Institute of Space Law, Issue 6 2014
Authors Andreas Loukakis, Timiebi Aganaba-Jeanty, Anita Rinner e.a.

Andreas Loukakis

Timiebi Aganaba-Jeanty

Anita Rinner

Edmond Boullé

Olavo de O. Bittencourt Neto
Professor Doctor, Catholic University of Santos (Brazil)

Joyeeta Chatterjee
McGill University, Institute of Air and Space Law.
Article

Access_open Business Enterprises and the Environment

Corporate Environmental Responsibility

Journal The Dovenschmidt Quarterly, Issue 4 2013
Keywords Corporate Environmental Responsibility, Environmental Due Diligence, Environmental CSR, Business enterprises and the environment, Environmental complement to Ruggie Framework
Authors Katinka D. Jesse and Erik V. Koppe
AbstractAuthor's information

    In 2011, following his 2005 initial mandate of the UN Commission on Human Rights and his extended 2008 mandate of the UN Human Rights Council, the Special Representative of the Secretary-General (SRSG) on the issues of human rights and transnational corporations and other business enterprises, Professor John Ruggie, issued the final text of the ‘Guiding Principles for the Implementation of the United Nations “Protect, Respect and Remedy Framework”‘. The 2008 Framework on Business and Human Rights and the complementing 2011 Guiding Principles consist of three pillars: the duty of states to protect human rights, the responsibility of business enterprises to respect human rights, and access to remedies for victims of human rights abuses. They currently qualify as the dominant paradigm in the corporate social responsibility (CSR) discourse, also because they now form part of various soft law and self-regulation initiatives. The Framework and Guiding Principles do not, however, specifically focus on environmental issues, but their systematic approach and structure do provide a model to address state duties and business responsibilities to care of the environment. This article is intended to complement the UN Framework and Guiding Principles on business and human rights with principles in the field of business and the environment. Hence, it is submitted that states have a customary duty to care for the environment; it is similarly submitted that business enterprises have a responsibility to care for the environment; and it is submitted that stakeholders must have access to remedies in relation to breaches of these duties and responsibilities.


Katinka D. Jesse
Dr. Katinka D. Jesse is post-doctoral research fellow at North-West University, South Africa.

Erik V. Koppe
Dr. Erik V. Koppe is assistant professor of public international law at Leiden Law School, The Netherlands. This article is partly based on research conducted by Jesse and Koppe as HUGO Fellows at the Netherlands Institute for Advanced Studies in Wassenaar in the fall of 2011.
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