Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
  1. Home
  2. Publications
  3. Publishing partners
  4. Intersentia
  5. Content Listing

Refine listing

Refine listing

Access:
Content type:
Publication date:
Apply   From and To filters
Subject: Show more
Journals Show more
Publishers: Show more
Societies Show more
Series: Show more
Collections: Show more

Actions for selected content:

Select all | Deselect all
  • View selected items
  • Export citations
  • Download PDF (zip)
  • Save to Kindle
  • Save to Dropbox
  • Save to Google Drive

Save Search

You can save your searches here and later view and run them again in "My saved searches".

Please provide a title, maximum of 40 characters.
Cancel
×

7719 results in Intersentia

Page 297 of 386

A Human Rights-based Approach to Conserving Protected Areas in China
  • Lessons from Europe
  • Miao He
  • Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    05 May 2016
  • As the world's population grows and the demands for natural resources increase, protected areas are becoming more important, but also more threatened. On the one hand, conservation of protected areas can contribute to the safeguarding of human rights; on the other hand, neglecting human rights can be a trigger for the mismanagement and destruction of protected areas. How can an objective and systematic approach be used to balance human rights protection and the conservation of protected areas? A well-balanced human rights-based approach seems to be the answer. This book draws lessons from Europe on how certain human rights can empower individuals, local communities and environmental NGOs in order to enhance their role in conserving protected areas in China. The author introduces the theory of a human rights-based approach to conservation and points out its advantages and challenges. Next, four main human rights, namely the right to property, the right to information, the right to participation and the right to access to justice, both in China and in Europe, are analysed in a theoretical and historical way. The key features of these four human rights are examined, as are the main reasons for their different approaches in China and in Europe. Thirdly, the book makes suggestions for how to implement a human rights-based approach to the conservation of protected areas in China, based on the experiences and lessons from the European legal system. In the last part, the author draws a general conclusion and suggests an outlook for the future.

  • Chapter 4 - Substantive Right (Right to Property) and Protected Areas Conservation

  • from PART II - ANALYSIS OF THE RELATIONSHIP BETWEEN HUMAN RIGHTS AND PROTECTED AREAS CONSERVATION IN CHINA AND IN EUROPE
  • Miao He
  • Book:
    A Human Rights-based Approach to Conserving Protected Areas in China
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    05 May 2016, pp 117-168

  • Summary

    As we have seen in the introduction (see 1.1.4), there can be strong linkages between halting the ongoing loss of biodiversity through protected areas, improving human livelihoods, and ensuring peoples’ rights. The right to property is among the human rights most prone to be affected by nature conservation. In most cases, property rights have played a decisive role in determining whether communities would be involved in proposed conservation and environmental projects. Indeed, to secure the right to property is a precondition to the effective enjoyment of core human rights, for instance the right to life and the right to respect private and family life, home, and correspondence. A system of land tenure that acknowledges different layers of use, access, control, and ownership and accommodates both traditional indigenous system of land tenure alongside modern property rights is the starting point in the process of recognition and inclusion of stakeholders in decisions pertaining to land and related resources. As for the local people and communities, the essence of property to land is not the possession of a physical piece of land per se, but the right to live offthe land, and enjoy the benefit stream it provides.

    RELATIONSHIP BETWEEN THE RIGHT TO PROPERTY AND PROTECTED AREAS

    Man may possess such things as are appropriate to preserve himself and satisfy his needs; it is over these things that his right to liberty is exercised in all its fullness, this is called property. At a more fundamental level, the property laws raise issues of what can be “owned” and what “ownership” entails. More specifically, property laws are the legal concepts that most strongly enshrine the view that economic wealth, freely pursued through the free use and enjoyment of natural resources, will provide for both individual and the so-called net social benefit, or common good.

    GENERAL RIGHT TO PROPERTY IN INTERNATIONAL AND REGIONAL HUMAN RIGHTS INSTRUMENTS

    The Universal Declaration of Human Rights includes the right of everyone to own property alone as well as in association with others, and in Article 17, it adds that “no one shall be arbitrarily deprived of his property.”

  • Chapter 5 - Procedural Rights and Protected Areas Conservation

  • from PART II - ANALYSIS OF THE RELATIONSHIP BETWEEN HUMAN RIGHTS AND PROTECTED AREAS CONSERVATION IN CHINA AND IN EUROPE
  • Miao He
  • Book:
    A Human Rights-based Approach to Conserving Protected Areas in China
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    05 May 2016, pp 169-326

  • Summary

    Procedural rights are generally regarded as an aspect of the rule of law and detached from substantive rights. Procedural rights, as entry points for supporting substantive rights, play an irreplaceable role in helping substantive rights come into practice, when an interference occurs. For instance, broad access to information promotes better decisions by mobilising a demand for sustainable solutions to problems. However, procedural guarantees of information and participation can prove insufficient to protect the environment if a fully informed society decides to sacrifice environmental quality in order to advance economic or cultural considerations. Nevertheless, people should be involved in decisions that potentially affect them. To empower people with procedural rights could be a better guarantee for their involvement.

    Historically, after the 1972 Stockholm Conference on the Human Environment, environmental scholars and activists began to consider human rights in a more instrumental fashion, identifying those rights whose enjoyment could be considered a prerequisite to effective environmental protection. They focused in particular on the procedural rights of access to environmental information, public participation in decision-making, and access to justice and remedies in the event of environmental harm.

    This was confirmed by “Our Common Future” (the Brundtland report) published in 1987. And then, the World Commission on Environment and Development (WCED) adopted a list of proposed legal principles for environmental protection and sustainable development, the first of which reads “all human beings have the fundamental right to an environment adequate for their health and wellbeing”. Principle 6 specifically concerns the right to information and equal access and due process in administrative and judicial proceedings.

    After these, the Convention on Trans-boundary Effects of Industrial Accidents was the first international treaty to contain the three procedural environmental rights, which are the right to information, the right to participation and the right to access to remedies (Article 9). Three months later, these three procedural environmental rights were approved in Principle 10 of the Rio Declaration on Environment and Development. It says that: “Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.

  • Chapter 3 - Protected Areas Conservation in China and in Europe

  • from PART II - ANALYSIS OF THE RELATIONSHIP BETWEEN HUMAN RIGHTS AND PROTECTED AREAS CONSERVATION IN CHINA AND IN EUROPE
  • Miao He
  • Book:
    A Human Rights-based Approach to Conserving Protected Areas in China
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    05 May 2016, pp 91-116

  • Summary

    Protected areas are widely recognised as a cornerstone of biodiversity management and sustainable development. A large number of global and regional treaties and other instruments promote the establishment of protected areas. Among these, the CBD, with 193 countries as members, is a particularly important endorsement of protected areas. It states that, as far as possible and appropriate, parties shall “establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity”. Other agreements and actions in the international arena also support protected areas.

    Under this global framework on protected areas, this idea was actively supported by some NGOs, for instance IUCN's WCPA (World Commission on Protected Areas). The WCPA is the major global network of protected areas specialists; its mission is “to promote the establishment and effective management of a representative world-wide network of terrestrial and marine protected areas”. Besides this, the fifth IUCN World Parks Congress, which is regarded as a landmark global forum on protected areas, held in Durban in 2003 under the title “Benefits Beyond Boundaries”, aimed to consolidate the role of protected areas in conserving biodiversity, as well as encouraging debate on their role in human development, in the fight against poverty and in moderating the effects of global change. This led to the more formalised process of the CBD's Programme of Work on Protected Areas, adopted in 2004, and still relevant to policy today. It triggered the launch of regional and national protected areas initiatives, and facilitated the documentation of social, economic, cultural, ecological and legal benefits of protected areas. As a result, protected areas have become a major instrument to reduce the rate of worldwide biodiversity loss. This calls for the effectiveness in protected areas management.

    The CBD's Programme of Work on Protected Areas aimed to help countries meet specific targets on biodiversity. The CBD 2010 Biodiversity Target, which was agreed in April 2002, was the first set of targets. This target was subsequently endorsed by the World Summit on Sustainable Development and the United Nations General Assembly, and was incorporated as a new target under the Millennium Development Goals; however, this target was not met, leading to a reformulation of the Biodiversity Target.

  • Chapter 2 - Theory of a Human Rights-Based Approach to Conservation

  • from PART I - INTRODUCTION AND BACKGROUND
  • Miao He
  • Book:
    A Human Rights-based Approach to Conserving Protected Areas in China
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    05 May 2016, pp 53-88

  • Summary

    A HUMAN RIGHTS-BASED APPROACH AND ITS KEY FEATURES

    A new “paradigm” of nature conservation with respect for human rights has recently emerged. The UN Development Program issued a “Statement of Common Understanding” in May 2003, explaining that “In a human rights based approach, human rights determine the relationship between individuals and groups with valid claims (rights-holders) and State and non-State actors with correlative obligations (duty-bearers).” The purpose behind the Statement of Common Understanding was to provide a consistent and coherent definition on the human rights-based approach across all UN agencies, funds and programmes. The human rights-based approach works towards strengthening the capacities of rights-holders to make their claims, and of duty-bearers to meet their obligations. The UN Common Understanding of a human rights based approach is based on a number of principles, of which empowerment is an important one. The Common Understanding serves to guide processes and outcomes with respect to human rights mainstreaming and in doing so provides practitioners with operational guidance in applying a human rights-based approach in their work. An increasing number of UN agencies are not only integrating human rights into their internal policies, but also actively advocating for human rights through their mandated work. Human rights are fulfilled when the persons involved enjoy secure access to the freedom or resource (adequate health protection, freedom of speech) covered by the right. A human rights based approach calls for the recognition of the intrinsic link between human rights and development goals, including environmental sustainability. While charity and needs-based approaches focus on the manifestation and immediate causes of problems, a human rights-based approach addresses such causes in a more structural manner.

    The term “human rights-based approach” is used by various actors and organisations in different ways. By drawing on the human rights framework – a relatively well developed and widely recognised set of negotiated standards – a human rights-based approach offers a strong standard with which to understand and assess the social implications of conservation practice. A human rights-based approach is generally understood that all rights, including economic, social and cultural rights, are considered indivisible, interrelated and interdependent. However, the human rights-based approach does not necessarily have to be restricted to rights currently recognised in human rights law, but can have a normative component.

  • Chapter 8 - Looking Back – Moving Forward

  • Gautier Busschaert
  • Book:
    Participatory Democracy, Civil Society and Social Europe
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    29 April 2016, pp 153-180

  • Summary

    INTRODUCTION

    Relying on the tripartite framework of Cohen and Arato, this book takes the view that civil society should be seen as a pluralist sphere of participation between state and market wherein deliberative democracy realises its full potential. Democratisation proceeds whenever civil society manages to assert influence over state and market without falling prey to their colonising tendencies. This emancipatory process has so far taken place within the context of national welfare states. The fundamental question raised by the turn to civil society is whether multilevel social Europe will continue this emancipatory process or, on the contrary, bring about its collapse under the colonising forces of power and money. This raises two sets of questions which have been explored in detail through the case studies contained in Chapters 4 to 7, the first pertaining to the reflexive tendencies of European economic law and the second to the participatory-democratic credentials of social Europe.

    Whether multilevel social Europe protects civil society from state and market forces is an issue that cannot be fully addressed without answering a last question relating to the effectiveness of EU social law and policy making. In line with our tripartite framework, assessing the effectiveness of social Europe comes down to asking whether it is strong enough to protect civil society from the colonising tendencies of European economic integration. This issue necessarily comes at the end of our inquiry and finds itself deeply intertwined with the two previous questions. What social Europe must achieve in order to provide effective protection against markets very much depends on the constraints negative integration imposes on civil society in the first place. What social Europe can legitimately hope to achieve very much hinges upon its ability to draw democratic support from its dialogue with civil society. This final chapter is therefore an opportunity to bring the threads of this book together.

    Looking back, this book’ findings as to the reflexive capacity of European economic law (8.2) and democratic support available for social Europe (8.3) will be summarised. The limits of those findings will be exposed as well as their relevance for the issue of effective social Europe. Moving forward, the effectiveness of multilevel social Europe will be appraised through a preliminary assessment of the achievements of the hard CM and the soft OMC.

  • Chapter 5 - Revisiting the Fundamentals of European Competition Law

  • Gautier Busschaert
  • Book:
    Participatory Democracy, Civil Society and Social Europe
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    29 April 2016, pp 77-100

  • Summary

    INTRODUCTION

    CSOs evolve in an increasingly competitive environment where fighting for market shares against for-profit companies, but also against their non-profit counterparts, is very much the order of the day. At the same time, CSOs have a long tradition of cooperation between themselves which sometimes conflicts with the discipline imposed by competitive markets. They may conclude catchment area agreements so as to avoid ‘wasteful duplication’. It is also quite common for CSOs to agree on common pricing strategies which reflect social concerns by subsidising below-cost services to needy clients with higher fees paid by better-offclients. Yet, CSOs are not-for-profit: they restrict competition with a view to further the social goals by which they are statutory bound, whereas commercial companies are presumed to do so with a view to increase profit. This fundamental difference raises the question of whether European competition law integrates CSOs’ distinctiveness as a third sector between state and market or, on the contrary, if it assimilates them to for-profit companies.

    This is reminiscent of an issue which has attracted the attention of many scholars before: can European competition law internalise public service values? Although pertinent, this chapter does not address this question in detail. It mainly considers the possible reconciliation of European competition law with the social values promoted by civil society rather than with the public service values guaranteed by the state. This book argues that too much focus on the state-centred conception of the general interest underpinning the notion of SGEI found in Article 106(2) TFEU has lost sight of the fundamental contribution of civil society to the welfare of modern societies. CSOs have pioneered many social services which have subsequently been ‘entrusted’ to them by the state and they are still intervening today in response to the failure of the state to answer society's most basic needs. States are well aware of civil society's essential role in promoting welfare and direct significant amounts of subsidies towards it as a result. For the above reasons, it seems important to analyse European competition law's ability to account for the distinctive features of CSOs.

    With this thread running through the chapter, it will first be examined under what circumstances CSOs are considered as ‘undertakings’ and, therefore, enter the jurisdictional boundaries of European competition law (5.2). CSOs will then be confronted to the substance of European competition law.

  • Chapter 4 - Revisiting the Fundamentals of Internal Market Law

  • Gautier Busschaert
  • Book:
    Participatory Democracy, Civil Society and Social Europe
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    29 April 2016, pp 57-76

  • Summary

    INTRODUCTION

    As exemplified by a handful of cases decided by the ECJ in the fields of education, healthcare and social welfare, the free market orientation of the European economic constitution sometimes comes into conflict with Member States’ core sovereign power to organise their welfare systems. These clashes are to be seen through the lens of a state/market divide. Activities are allocated to either sphere according to their economic nature. Non-economic activities escape the application of internal market law, while economic activities benefit from the four freedoms and cannot be restricted by Member States beyond what public interest requires.

    This chapter is an invitation to confront this legal dichotomy with the reality we live in, where one finds organised civil society lying between the state and the market. It will be argued that the conflict mentioned hereinabove should not be merely stated as a case of state versus market, public versus private. One should go beyond this seemingly obvious legal divide and ask how internal market law impacts on state policies that favour the provision of social services by organised civil society as opposed to market operators. This is not a rhetorical question. Such policies, although increasingly called into question by Member States, do exist in some European countries. They may even come back in favour with the near-collapse of the Washington consensus and growing interest in third way policies. This issue goes to the heart of what has been described in Chapter 3 as a need for social policy to defend civil society against the colonising forces of markets. It is asked whether resistance can take the shape of policies expressing the democratic will of a political community to keep profit-making at bay in a sector of fundamental importance: welfare delivery.

    The main analytical tool used for the purpose of answering the above question will be the notion of solidarity, defined here as ‘a willingness to share the fate of the other’. Two dimensions of this multifarious notion will be considered, which together reflect the conception of solidarity as a non-economic resource rooted in civil society. In its first, non-economic, dimension, solidarity may take the shape of a decision by which a political community transfers resources from one social group to another (thereafter referred to as ‘social solidarity’). Social solidarity thereby understood as redistribution, represents the focus of welfare states.

  • Chapter 7 - The Open Method of Coordination – Radicalising Participatory Democracy in the EU?

  • Gautier Busschaert
  • Book:
    Participatory Democracy, Civil Society and Social Europe
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    29 April 2016, pp 129-152

  • Summary

    INTRODUCTION

    At the Lisbon European summit in 2000, the Union set itself an ambitious goal for the next decade: ‘to become the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth with more and better jobs and greater social cohesion’. With a view to realise this socio-economic agenda, ‘a [new] open method of coordination’ (OMC) was introduced ‘as the means of spreading best practice and achieving greater convergence towards the main EU goals’. The Lisbon strategy built upon previous coordination processes in the economic (Broad Economic Policy Guidelines, 1992) and employment (European Employment Strategy, 1997) fields so that the OMC was new only to the extent that it provided a new legitimising discourse around which past and novel practices could crystallise.

    Since then, the OMC has become ‘the central tool of EU social policymaking in the new millennium’, for, the social inclusion process, established in 2000 with a view ‘to make a decisive impact on the eradication of poverty’, would later be complemented by a pensions process (2001) and a health care and long-term care process (2004). As from 2006, the three processes were streamlined into a single social OMC with the following elements:

  • – Common objectives were endorsed by the European Council in March 2006, with both overarching and specific objectives for each strand of the social OMC;

  • – Common indicators were also agreed by the Social Protection Committee (SPC) with a view to measure Member States’ progress towards the common objectives;

  • – Every three years, Member States would translate common objectives into National Strategies for Social Protection and Social Inclusion, with a common section presenting their overall strategic approach and three thematic plans covering, respectively, social inclusion, pensions, and healthcare and longterm care;

  • – The strategies would then be sent to the Commission with a view to monitor progress in a Joint Social Protection and Social Inclusion Report to be drafted every year for Council/Commission adoption prior to each Spring European Council;

  • – The different elements of the social OMC were supported by Progress, a programme which financed the implementation of the objectives of the European Union in the fields of employment and social affairs for the period 2007–2013.

Participatory Democracy, Civil Society and Social Europe
  • A Legal and Political Perspective
  • Volume 8
  • Gautier Busschaert
  • Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    29 April 2016
  • Participatory democracy has become a buzzword in current discussions about how to democratize the EU. European institutions associate it with civil society involvement in European governance and claim that it might reduce its so-called democratic deficit. The Treaty of Lisbon formalizes this promise by enacting a new Article 11 TEU specifically dedicated to participatory democracy as a founding principle of the EU legal order. This participatory turn has already attracted much scholarly attention. However, two fundamental paradoxes have been overlooked. Whereas participatory democracy was traditionally meant to further the maximum participation of citizens in political life, the EU supports a modern version of the participatory ideal where citizens are represented by a selfdesignated elite of civil society experts. This book takes a critical stance on that technocratic form of government. At the same time, it examines whether there are realistic ways for a bureaucratic organization like the EU to involve a truly civil society of active citizens in governance. Participatory democracy was also intended to overcome the social inequalities of market capitalism. Yet, the EU came into existence as a European economic community embracing free and undistorted competition. This book claims that European civil society may only flourish if social Europe acts as a counterweight to economic Europe. So it analyses whether the EU has developed a social dimension strong enough to protect civil society from the colonizing forces of European economic integration. The author is currently working as an attorney at Van Olmen & Wynant, a Brussels-based law firm with a niche expertise in social and employment law. He also holds a PhD in law from the University of Leicester, awarded for the doctoral thesis upon which this book is based.

  • Chapter 3 - Overcoming the Participatory Ideal of Bits and Pieces

  • Gautier Busschaert
  • Book:
    Participatory Democracy, Civil Society and Social Europe
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    29 April 2016, pp 35-56

  • Summary

    INTRODUCTION

    This chapter endeavours to present normative benchmarks for assessing in a coherent and systematic manner the EU participatory turn. As mentioned in the previous chapter, this requires taking a stand on three highly contested issues. As to the conception of civil society and the nature of its democratic contribution, the theoretical framework developed by Cohen and Arato in ‘Civil Society and Political Theory’ will support the view that civil society is a pluralist sphere of participation between state and market wherein deliberative ethics realises its full potential. Democratisation proceeds whenever civil society manages to assert influence over the state and market subsystems without falling prey to their colonising tendencies. This emancipatory process has so far taken place within the context of national welfare states. This begs the question: how will it play out in the EU which is not a state (3.2)?

    A proper answer entails agreement to be reached as to the nature of the EU-polity. It will be argued that the EU is a multilevel political system with a social policy in the making. Multilevel social Europe turned to civil society's involvement in European governance in the hope that it would democratise its representative system of government. The crucial issue raised by the participatory turn is whether multilevel social Europe will be able to continue the emancipatory process engaged by national welfare states. In others words, will social Europe contribute to civil society's empowerment or to its collapse under the colonising forces of power and money (3.3)?

    This brings up three sets of questions an affirmative answer to which appears necessary if civil society is to democratise social Europe. Firstly, is European economic law colonising or sufficiently reflexive to limit the impact of negative integration on civil society (3.4)? Secondly, is social Europe democratic in the sense that it opens European governance to the democratic influence of civil society (3.5)? Lastly, is social Europe effective, that is, able to protect civil society from the market imperative of European economic integration (3.6)? A cursory glance will be given to these questions and the specific case studies chosen to test them will be introduced. The remaining chapters will be dedicated to their in-depth analysis.

  • Chapter 2 - Reviewing the Participatory Ideal of Bits and Pieces

  • Gautier Busschaert
  • Book:
    Participatory Democracy, Civil Society and Social Europe
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    29 April 2016, pp 17-34

  • Summary

    INTRODUCTION

    Whereas the participatory theory of democracy, and the arguments contemporary theorists have made against it, sheds light on the EU's timid turn to citizen-based participatory democracy, it leaves us empty-handed when it comes to assessing the embrace of civil-society-centric participatory democracy (2.2). The latter understanding of participatory democracy has brought up many questions with which European integration literature is still struggling. Scholars are battling for the soul of (European) civil society. How can one define civil society, what are its conceptual boundaries and the function it performs in modern societies, particularly in the EU (2.3)? They also see civil society, however defined, through the lenses of different democratic theories which, they claim, are modern variants of the old participatory ideal. Different views on the nature of the EU-polity bring up a further layer of complexity to the debate on the merits and demerits of the participatory turn. Is the EU a state in the making, a political system or a system of participatory governance (2.4)? This chapter will take a stand on these issues so that the reader understands where this book positions itself in the theoretical debate on the participatory turn. This chapter will also identify a major shortcoming in the literature which the theoretical framework exposed in Chapter 3 aims to overcome: by systematically neglecting the maximum participation of citizens in political life as well as the inequality bias of market capitalism, existing scholarship only incorporates bits and pieces of the ideal of participatory democracy (2.5).

    THE PARTICIPATORY THEORY OF DEMOCRACY AND ITS LIMITS

    The participatory theory of democracy seems like the most convenient starting point for finding normative benchmarks against which to assess the participatory turn. There is not one single participatory theory of democracy, but rather an elusive list of authors who have expressed a common weariness towards the contemporary theory of democracy for its neglect of participation. Indeed, the contemporary theory of democracy, contrary to the classical democratic theory and its modern participatory proponents, advocates minimal participation: too much participation would threaten the stability of the system, while no participation would quickly turn into tyranny. The main features of the participatory theory of democracy as well as the arguments contemporary theorists hold against it will be presented in this section with a view to assess the participatory turn.

Page 297 of 386