Human Rights and the Environment
International Environmental Law
JUS 5520
Dina Townsend
Dina.townsend@jus.uio.no
Outline
1.
Introductory remarks on the links between HR and the
environment
2. A brief introduction to HRs
3. The importance of the environment for the realisation of rights
4. Environmental rights
5. The importance of rights for the environment – procedural and
substantive rights
6. Principles
7. IEL in HR Courts
8. Non-human rights?
9. Tensions in the relationship between HR and EL
10. Summing up
1
1. Introductory remarks on the links
between human rights and the
environment
2
What is the relationship between IEL
and HRL?
• Closely related fields …
-
Some shared goals
Some shared challenges
Some shared law
Linked causally
But these are not always complementary fields of
law.
3
2. A brief introduction to human
rights
4
A brief introduction to HRs
• What are human rights?
Universal Declaration of Human Rights 1948:
Human rights are UNIVERSAL, INHERENT,
INALIENABLE rights protected through treaty
and customary international law.
They are interdependent and indivisible.
5
Classes/generations of rights
We talk about different classes of rights – see the International
Covenants on Civil and Political Rights and Economic, Social and
Cultural Rights 1966
1. Civil and political rights
Civil and political rights – protect individuals and groups from
activities which inhibit our participation in civil and political life.
Includes the right to life, equality, privacy, freedom of thought,
movement and association, free speech, the right to vote and so
forth.
2. Socio-economic rights
Rights to economic, social and cultural goods including rights to
education, housing, food, health, social security etc
3. Third generation rights
Rights beyond civil and social, including collective rights such as
rights to environment, heritage, peace etc
6
3. The importance of the environment for
the realisation of rights
7
The importance of the environment for
the realisation of human rights
• The decisions we make about the environment
may impact all classes of human rights.
• Human Rights depend on certain environmental
conditions – what threshold?
• So environmental quality impacts on our ability
to secure rights
• These impacts may be direct or indirect.
8
Direct impacts – oil and gas in Nigeria
• SERAP v Nigeria 2012 – ECOWAS court –
violations of rights to health, adequate
standards of living and economic and social
development.
• Gas flares case in Nigerian High Court Gbemre v Shell Petroleum Development
Company Nigeria Limited and Others (2005)
AHRLR 151 (NgHC 2005)
• Oil spill cases before UK & Dutch courts.
Gas flare at Utorogu
Picture credit:
Reuters/George Esiri
9
Indirect impacts - Climate Change and
Syria:
Center for Climate and Security – “a
combination of extreme drought, natural
resource mismanagement and
population dynamics helped set the
conditions for a fragile Syrian state.
From 2007-2010, the country
experienced the worst drought in its
history of records. This drought was part
of a trend of declining winter
precipitation in the region – a trend
linked to climate change…which made
this drought 2-3 times more likely to
occur. Combined with water, food and
land mismanagement by the al-Assad
regime, who subsidized water-intensive
agriculture, this drought contributed to
the devastation of a significant
percentage of Syria’s crop and
rangeland, and the displacement of 2
million farmers and herders, many of
whom fled to urban centers.”
Map – Mike King for NYRB
10
Environmental impacts on human
rights
• Which rights are impacted when
environmental degradation occurs?
• The inter-dependence of rights
– Civil and political rights
– Socio-economic rights
– Third generation rights
• Environmental rights?
11
4. Environmental human rights
12
Environmental human rights
• African Charter on Human and People's Rights
'all peoples shall have the right to a generally satisfactory environment
favourable to their development' - Art 24
• San Salvador Protocol to the American Convention on Human
Rights
‘1. Everyone shall have the right to live in a healthy environment and to
have access to basic public services. 2. The state parties shall promote
the protection, preservation and improvement of the environment.' - Art
11
• Convention Concerning Indigenous and Tribal Peoples in
Independent Countries 1989
Articles 4 and 7 protect the rights of indigenous and tribal peoples to the
natural resources of their lands
• Rights-like language in the Stockholm Declaration, Hague
Declaration etc
13
5. The importance of rights for IEL
14
The importance of rights for IEL
• The protection of human rights is often
critical to the realisation of environmental
goals and outcomes stipulated in IEL
• The denial of people’s rights often occurs
hand in hand with the degradation of
environments
• Rights bring issues of equality and justice
into environmental legal questions
15
Procedural rights
Access to information and the right to participate –
“availability and access to information allows preventative
and mitigation measures to be taken…” PIEL chpt 15 p624
Rio Declaration Principle 10:
“Environmental issues are best handled with participation of all
concerned citizens, at the relevant level. At the national level, each
individual shall have appropriate access to information concerning
the environment that is held by public authorities, including
information on hazardous materials and activities in their
communities, and the opportunity to participate in decision-making
processes. States shall facilitate and encourage public awareness
and participation by making information widely available. Effective
access to judicial and administrative proceedings, including
redress and remedy, shall be provided.”
16
Procedural rights
• 1998 Aarhus Convention – p652 PIEL
– Creates a Europe-wide regime for 1. environmental
information access, 2. public participation and 3.
access to justice in enviromental matters.
– Participation and environmental information are
broadly defined
– Right to participate includes rights to submit
comments and obligations on parties to take account
of PP outcomes
– Article 6 – parties must inform the public early in the
decision-making process
– Article 9 – access to courts both on procedural and
substantive issues
17
Procedural rights
• Free, prior and informed consent
– Consent versus consultation
– Right to be heard and to participate
– Access to information
See Saramaka v Suriname 2007 IACHR – the
Court required the effective participation of the
affected people in line with their customs and
traditions regarding any development or
investment plan within their territory
18
Procedural rights
Environmental Impact Assessments (EIAs) and
Strategic Impact Assessments (SEAs)
- Principle 17 of Rio
- Pulp Mills case – required for activities with
transboundary effect
- Essential means for obtaining information
about impacts
- EIA procedures have been developed by the
World Bank Operational Directive 4.01
19
Procedural rights
• Why are procedural rights important for IEL?
• Who benefits from the protection of
procedural rights?
• Does the environment benefit from protection
of procedural rights?
• Do vulnerable groups (women, children)
benefit from the protection of procedural
rights?
20
Substantive rights
• Right to health
– ICESCR Article 12 – demands the “ The
improvement of all aspects of environmental and
industrial hygiene”
– Often environmental rights are rights to a healthy
environment eg San Salvador Protocol
– Key point of intersection of human/environmental
interests – tied to rights to clean air, water, food
etc
21
Substantive rights
• Rights to self-determination
– ICCPR/ICESCR Article 1 – “all peoples may… freely
dispose of their natural wealth & resources… In no
case may a people be deprived of its own means of
subsistence”
– ICCPR Art. 47/ICESCR Article 25 – “nothing in the
present Covenant shall be interpreted as impairing the
inherent right of all peoples to enjoy & utilize fully &
freely their natural wealth & resources”
• Right to property (UDHR article 17)?
• Right to work (ICESCR article 6-9)?
With thanks to Aled Dilwyn Fisher
22
Substantive rights
• Protection of indigenous groups
What is the relationship between protecting indigenous groups and
protecting the environment?
– Article 8 of the CBD – contracting parties must “respect,
preserve and maintain knowledge, innovations and
practices of indigenous and local communities embodying
traditional lifestyles relevant for the conservation and
sustainable use of biological diversity and promote their
wider application with the approval and involvement of the
holders of such knowledge, innovations and practices and
encourage the equitable sharing of the benefits arising from
the utilization of such knowledge, innovations and practices”
– Awas Tingni vs Nicaragua – Inter-American Court extended
right to property to include indigenous collective property
rights.
23
Substantive rights
• What is the role of substantive rights in IEL?
• Who do substantive rights serve?
• Do substantive rights help us identify
environmental standards? Eg the right to
health
• Do some substantive rights compete with
environmental interests?
24
Third generation rights
• Few internationally binding third generation
rights but…
– Right to Development – Article 22 of the ACHPR
– Right to a Healthy Environment – Article 24 of the
ACHPR
– Right to freely dispose of wealth and natural
resources – Article 21 of ACHPR
– What about a right to sustainability and intergenerational justice?
25
Principles in the relationship between
HR and IEL
• Dignity
– Courts talk about dignity as the foundation, source or
purpose of human rights. Dignity is sometimes defined as
inherent, fundamental and universal human worth - that
which defines who we are as humans. What does this mean
for IEL?
– We owe each other an obligation of respect, owed to all
humans by virtue of their being humans and owed by all
humans. Do we owe respect to the environment? Degrading
the environment not only causes environmental harm but
also offends human dignity.
– Dignity and quality of life - Stockholm Declaration: "An
environment of a quality that permits a life of dignity and
well-being."
26
HR Principles
• Justice
– Understanding the ways in which environmental
decision-making discriminates against certain groups
or classes of people
– Understanding the effects and broadening our
definitions of environmental damage (p706 PIEL)
– Highlighting the shifts in power and authority in an
increasingly global world. States and individuals are
increasingly burdened with the environmental costs of
multi-national, big business. Can IEL address this?
See (SERAP v Federal Respublic of Nigeria ECOWAS Court 2012)
27
Principles
• Sustainability
– Ideally the connection between HR and IEL
principles
– Bringing together or balancing?
Picture from http://www.7continents5oceans.com/what-is-sustainable-developmentdefinition-and-examples
28
IEL in HR Courts
• African Court on Human Rights and
ECOWAS Court
– African Commission on Human and Peoples'
Rights v Republic of Kenya - povisional measures
awarded to protect the Ogiek community living in
the Mau Forest.
– Social and Economic Rights Action Center and
the Center for Economic and Social Rights v.
Nigeria (Commission)
29
IEL in HR Courts
• Inter-American Court and Commission on
Human Rights
– Awas Tingni Mayagna (Sumo) Indigenous
Community v Nicaragua - failure to consult
community on logging concessions violated rights
to judicial protection and property
– Yanomami v Brazil - Construction of a highway on
indigenous land - court found a link between
environmental quality and the right to life
30
IEL in HR Courts
• European Court of Human Rights
– Powell and Rayner v UK –
Heathrow case - court recognised Article 8 as right
to private life and home but said state can strike
balance between competing individual and
community interests
– Lopez Ostra v Spain – Ostra lived opposite a
waste plant on state land. Court found a violation
of Article 8 and balance between her interests
and public interests was not struck. The court
found the plant caused serious health problems.
31
Right beyond human rights
• Future generations - Do they have rights?
Should they have rights? Do we have rights
to their protection?
"Dear future generations. Please accept our
apologies. We were rolling drunk on
petroleum." Kurt Vonnegut
• Rights for non-human others? Animal rights?
– Christopher Stone “Should trees have standing?”
32
Tensions in the relationship between
HR and IEL
• HARM - Do HRs capture the HARM done to humans
when the environment is degraded?
• LIABILITY – are the right parties held liable when we
think of IEL in terms of HR interests? Are they held liable
in the right ways?
• NON-RIGHTS VIOLATIONS - Can we talk about
human+environmental impacts beyond rights
discourse?What are the risks and advantages of doing
so?
• HR\ENVIRONMENT CONFLICTS - What about
circumstances in which rights interests and environmental
interests clash? Can unsustainable environmental
degradation be necessary for the securing of human
rights?
33
Tensions continued
• Green Grabbing and the appropriation of nature
– nature up for sale- the protection of nature to the
exclusion of previous users and custodians, for
example: Tayrona National Park, Caribbean coast of
Colombia, designated or eco-tourism meant the
criminalisation, exclusion and forced eviction of
community members who have lived and worked in
the protected area for decades. Paramilitary groups
used violence and repression to “clean up” the park for
tourist activities, and privatised parts of the park by
leasing them to a local tourism company.
– See "Green Grabbing: a new appropriation of nature?"
Fairhead,Leach and Scoones - Journal of Peasant
Studies
Picture from http://www.future-agricultures.org/land/7698-qgreen-grabsq-journal-issue
34
Summing up: HR and IEL
• Necessarily interconnected and interdependent
fields
• HRs demand the protection of the environment in
order for those rights to be realised and protected
• IEL depends on HRs to secure environmental goals
and outcomes. In addition, HRs highlight important
aspects of IEL including aspects of justice
• But this is not always an easy relationship –
anthropocentric human rights sometimes conflict
with environmental goals (and also, HR goals)
35