Human Rights and the Environment

International Environmental Law

JUS 5520

Dina TownsendDina.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

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1. Introductory remarks on the links between human rights and the

environment

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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.

2. A brief introduction to human rights

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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.

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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 rightsCivil 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 rightsRights to economic, social and cultural goods including rights to education, housing, food, health, social security etc

3. Third generation rightsRights beyond civil and social, including collective rights such as rights to environment, heritage, peace etc

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3. The importance of the environment for the realisation of rights

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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.

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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 UtoroguPicture credit: Reuters/George Esiri

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Indirect impacts - Climate Change and Syria:

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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

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?

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4. Environmental human rights

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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 1989Articles 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

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5. The importance of rights for IEL

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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

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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.”

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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

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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

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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 4.0120

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?

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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

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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 23

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.

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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?

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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 inter-

generational justice?

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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."

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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)

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Principles

• Sustainability– Ideally the connection between HR and IEL

principles– Bringing together or balancing?

Picture from http://www.7continents5oceans.com/what-is-sustainable-development-definition-and-examples

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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)

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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

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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.

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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?”

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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?

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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 35

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)

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