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GNHRE launches Draft Declaration ahead of COP21

GNHRE LogoThe Global Network for the Study of Human Rights and the Environment (GNHRE) proclaims climate change a human rights issue and releases a Draft Declaration on Human Rights and Climate Change for Paris COP21

The GNHRE has issued a call-to-action for governments around the world in a Draft Declaration on Human Rights and Climate Change (The Declaration) ahead of the Paris Climate Summit beginning on 30 November. The Declaration outlines a crucial shift in the way that states should respond to climate change. The Declaration was drafted by GNHRE scholars and experts from all over the world. Combining new thinking and existing international human rights law, the Declaration presents an alternative formulation of rights that foregrounds human rights while simultaneously protecting the rights of non-human persons and living systems from climate harms.

The Declaration is intended to be a practical, thought-provoking and nuanced challenge designed to transform the climate debate. The Declaration addresses the structural unfairness in current patterns of vulnerability to climate change and the need to address the limitations of market-based approaches to the climate challenge, and has been delivered ahead of Paris COP21 in the hope that this timely and necessary intervention gains the full and serious consideration it deserves.

Please can everyone who wants to support this initiative by endorsing the Declaration, either individually or on behalf of an organisation you represent, please do so by emailing Kirsten Davies, who is collating a list of endorsers. Her email is: kirsty.davies@mq.edu.au

The text of the Declaration follows:

Draft Declaration on Human Rights and Climate Change

Preamble

Guided by the United Nations Charter, the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Vienna Declaration and Program of Action of the World Conference of Human Rights, the United Nations Declaration on the Rights of Indigenous peoples, The Nagoya Protocol and other relevant international instruments incorporating human rights,

Guided by the Stockholm Declaration of the United Nations Conference on the Human Environment, United Nations Framework Climate Change Convention, Convention on Biological Diversity, the World Charter for Nature, United Nations Convention on the Law of the Sea, the Rio Declaration on Environment and Development, and other relevant instruments of international environmental law,

Reaffirming the universality, indivisibility and interdependence of all human rights,

Recognizing the radical dependency of all life on earth on a healthy Earth system,

Recognizing that climate impacts caused by the human industrial and consumer activities on the planetary lifecycle, disproportionally affect the poor, women and children, the vulnerable, small island communities, developing countries and least developed countries, future generations and innumerable non-human natural persons and living systems,

Recognizing that courts and jurists of international standing link the fulfillment of human rights to a secure, healthy and ecologically sound environment, and that this necessarily includes human rights related to climate harms,

Recognizing that human and non-human natural persons and living systems are affected by climate harm and that it is the stewardship responsibility of human beings to respect and protect the rights of non-human natural persons and living systems,

Recognizing that science confirms the threat of climate change on the livelihoods and well-being of present and future generations,

Deeply concerned by the severe human rights consequences of the continuing political failure to reach firm commitments on climate mitigation and adaptation; by the dominance of the market as the supreme value coordinating international responses to the climate crisis; and by the lack of direct responsibility in international human rights law for corporate actors violating human and environmental human rights,

Convinced that the potential irreversibility of climate change effects gives rise to an urgent need for new forms of state and non-state accountability and liability,

THE FOLLOWING PRINCIPLES ARE DECLARED:

I:

  1. Human rights and a profound commitment to climate justice are interdependent and indivisible.
  2. All human beings have the right to a secure, healthy and ecologically sound Earth system and to fairness, equity and justice in the provision of climate resilience, adaptation and mitigation.
  3. All human beings have the right to a planetary climate suitable to meet equitably the needs of present generations without impairing the rights of future generations to meet equitably their needs.
  4. All human beings have the right to information about and participation in decision-making related to alterations to the physical environments they rely upon for their health and survival.
  5. All human beings have the right to the highest attainable standard of health free from environmental pollution, degradation and the emissions of environmental toxins and to be free from dangerous anthropogenic interference with the climate system such that rising global temperatures are kept well below the tipping point of two degrees centigrade above preindustrial levels.

II:

  1. All human beings have the right to investments in adaptation and mitigation to prevent the deleterious consequences of anthropogenic climate change, and to timely assistance in the event of climate change driven catastrophes.
  2. All human beings have the right to information concerning the climate. The information shall be timely, clear, understandable and available without undue financial burden to the applicant.
  3. All human beings have the right to hold and express opinions and to disseminate ideas and information regarding the climate.
  4. All human beings have the right to climate and human rights education. This education includes the right to learn from multiple perspectives and to understand non-human natural modes of behavior and the requirements of flourishing planetary ecosystems.
  5. All human beings have the right to active, free, and meaningful participation in planning and decision-making activities and processes that may have an impact on the climate. This includes the right to a prior assessment of the climate and human rights consequences of proposed actions. This includes the right to equality of hearing and the right for processes to be free of domination by powerful economic actors.
  6. All human beings have the right to associate freely and peacefully with others for purposes of protecting the climate or the rights of persons, whether human or non-human natural persons, affected by climate harm.
  7. All human beings have the right to effective remedies and redress in administrative or judicial proceedings for climate harm or the threat or risk of such harm, including modes of compensation, monetary or otherwise.

III:

  1. All persons, individually and in association with others, have a duty to protect the climate from damaging emissions.
  2. All States shall respect and ensure the right to a secure, healthy and ecologically sound environment and to a stable climate, and ensure the rights outlined in Parts I—III of this Declaration. Accordingly, they shall adopt the administrative, legislative and other measures necessary to effectively implement the rights in this Declaration.
  3. All States shall ensure international cooperation with other States and international organizations and agencies for the purpose of respecting the rights outlined in Parts I-III of this Declaration. All States shall observe the rights and duties in this Declaration.
  4. All international organizations and agencies shall observe the rights and duties in this Declaration.
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OUT NOW: First of New Book Series

Critical Reflections OwnershipThe first publication in the GNHRE series with Edward Elgar Publishing, Critical Reflections on Human Rights and the Environment is due out soon.

The series begins with Critical Reflections on Ownership written by Mary Warnock.

In this thought provoking work, Mary Warnock explores what it is to own things, and the differences in our attitude to what we own and what we do not.

Starting from the philosophical standpoints of Locke and Hume, the ownership of gardens is presented as a prime example, exploring both private and common ownership, historically and autobiographically. Concluding that, besides pleasure and pride, ownership brings a sense of responsibility for what is owned, a fundamental question is brought to light. Can we feel the same responsibility for what we do not, and never can, own? Applying this question to the natural world and the planet as a whole, a realistic and gradualist perspective is offered on confronting global environmental degradation. Critical Reflections on Ownership examines the effect of the Romantic Movement on our attitudes to nature and is a salient commentary on the history of ideas.

‘Mary Warnock’s Critical Reflections on Ownership is a sustained meditation on the significance that ownership has for us from one of our finest philosophical voices. First exploring the responsibility and love we have for things that are owned, she goes on to provide a penetrating investigation of the relationship we have to those things which we do not, indeed cannot, own, in particular the natural world. Critical Reflections on Ownership is required reading for anyone who wants to think deeply, and clearly, about the prospect of a global environmental cataclysm and what we might do to address it.’

J E Penner, author of The Idea of Property in Law

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Unique Court Win on Climate Change Failures

NETHERLANDS-RAINFALL-WEATHERA Personal Report from Femke Wijdekop:

Dutch citizens win climate case against the State: 24 June 2015

Together with 886 citizens, Dutch NGO Urgenda brought a climate liability case against the Dutch state. I joined this case as one of the co-plaintiffs. Our argument was that the Dutch state neglects its duty of care towards us—its current and future citizens—by not reducing CO2 emissions quickly enough to avoid catastrophic climate change. We asked the judge to order the Dutch State to reduce its CO2 emissions with 25-40 % in 2020, the percentage that science and international agreements tell us is needed if we want to stay below the 2 degrees threshold.

Today was ‘judgment day’ and I what I heard in that courtroom exceeded my hopes and expectations. In a groundbreaking verdict, the judges agreed fully with the arguments presented by us and stated that the Dutch state has a duty of care, under Dutch tort law, to reduce its C02 emission to 25% in 2020.  The court ruled that Urgenda had standing and that the State acted unlawfully towards Urgenda, representing 886 citizens, under national tort law.
The court used European human rights standards, such as art. 2 and 8 of the European Convention of Human Rights; the precautionary principle; the UN Framework Convention on Climate Change; and the treaty of the European Union to interpret the ‘equity’ principle of the Dutch tort article (art. 6:162 Civil Code) and concluded that the Dutch state is liable for a tort of negligence towards Urgenda. The argument of the State’s defence, that climate policy is a matter of discretion for the executive power, was brushed aside when the court appealed to the protective logic of the rule of law and the separation of powers: the judiciary’s rightful place is to offer citizens protection when the executive exercises its power in such a way that endangers the wellbeing and human rights of citizens, and this includes the negligence of a government refusing to take timely climate action.

We, co-litigants, and the defence attorneys for Urgenda were amazed by the boldness of the court. I was deeply touched to think that something really seems to be changing in the world, signalled by the decision of this court. The  court could have so easily have hidden behind arguments like ‘the discretionary power of the executive to determine climate policy’, or ‘the relatively small contribution of the Netherlands to the global emission problem, thus refusing to establish proportionate liability’ or ‘the lack of a strong enough causal link between the actions of the Dutch state and the future damage caused by climate change’—let alone by simply refusing to grant Urgenda standing. Yet with all these arguments available to it, the court made a bold decision to take responsibility for its duty to acknowledge scientific facts, apply the law and do justice in this matter of extreme societal importance.

For me it was a moment in which my idealism touched ground and merged with the hopes of the other 100 co-litigants present in the room (some of whom held hands—and many shed tears). Hopes were confirmed and ‘mirrored’ by the words of the judge who agreed with our most important grievances and demands. Such was the surprise that Urgenda‘s lawyers had to pull themselves together afterwards, overcome with emotion and relief—TV news images later showed their teary faces and yet none of them really tried to hide their tears: they were proud to admit that they had put their whole heart into this case —into  what they described as ‘the case of their lifetimes’. I cannot help but think that some of this wholeheartedness rubbed off on the judges in this rightful judgment.

Regardless of whether the State will appeal against the decision, this was a huge victory for climate activists and environmental lawyers all over the world. It gives encouragement and sound legal arguments to NGO’s in other countries, and the opportunity to start similar class actions on behalf of current and future generations. It is my wish that this precedent will be followed by many more similar such cases in other jurisdictions, forming a ‘ius commune’ on climate justice, and that other lawyers and co-litigants will dedicate themselves as wholeheartedly to these cases as we did here in the Netherlands on this historic day.

Femke Wijdekop

 

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Which direction for international environmental law? (Anderson)

Author

Paul Anderson

Keywords

Sustainability, governance, neoclassical economics, distributive justice, democracy, commons

Abstract

An enduring challenge to international environmental law is to facilitate the resolution of environmental problems faster than they are being caused. Prominent among potential foundations for substantive international environmental law to this end are (a) neoclassical economic theory (NET) and (b) distributive justice and deliberative democratic theories. Building upon existing critique, this paper makes two broad arguments. The first is that despite the influence of NET’s market-based prescriptions, solutions lie not in introducing and extending the privatization and pricing of nature, but instead in subsuming markets within an expanded and enriched public sphere that is characterized inter alia by decentralized, deliberative democratic decision-making. This contention suggests a need to reform substantive environmental law that is informed by NET. The second argument made is that limitations, in particular, of the deliberative democratic approach to environmental problems (e.g., prospects of achieving consensus on natural resource use and the efficacy of any consensus that might be reached) may be overcome by combining it with common key resource control – to put it crudely, by combining meaningful political with economic democracy. This revised foundation would offer a potentially viable foundation for IEL. It also offers guidance for incipient efforts to democratize environmental regulation.

Citation

(2105) 1 Journal of Human Rights and the Environment 98-126

Publication

Which direction for international environmental law?

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Explaining the emergence of constitutional environmental rights: a global quantitative analysis (Gellers)

Author

Joshua C Gellers

Keywords

Constitutions, democracy, environmental rights, human rights, international relations, survival analysis

Abstract

While the growing trend towards constitutional enactment of environmental rights has mainly been discussed in normative and descriptive terms, few scholars have endeavoured to explain the phenomenon in a systematic fashion and none have approached the subject from the perspective of international relations (IR). In this article, I seek to correct for this theoretical gap and augment the existing understanding of this global development in constitutional design. Using survival analysis, I examine normative, rationalist-materialist, and domestic politics explanations for the phenomenon observed. I find that the adoption of constitutional environmental rights is significantly associated with international civil society influence, human rights legacy, and level of democracy, and best explained by theories of domestic politics and norm socialization. This research suggests that the emergence of constitutional environmental rights signals a major shift in the international normative arena.

Citation

(2015) 1 Journal of Human Rights and the Environment 75-97

Publication

Explaining the emergence of constitutional environmental rights: a global quantitative analysis

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