All posts by Anna

Taking aims seriously – how legal ecology affects judicial decision-making (Pallonitty)

Author

Tiina Pallonitty

Keywords

Methodology of environmental law, judicial decision-making, water management, legal theory, principles, rights, rules

Abstract

This article reflects upon key challenges that ecology as a field of science has brought to modern environmental law as it operates within civil law systems. An example from European water management regulation elucidates how the traditional perception of judicial decision-making as deductive reasoning does not match the current reality because factual and normative premises are no longer as distinct as presumed. A novel way of formulating judicial decisions is accordingly presented: legal ecology – which aims to provide one answer to the search for more mature environmental methodologies. Legal ecology is based on the writings of the late Ronald Dworkin and especially of Robert Alexy, whose concept of principles as optimization requirements is adapted to fulfill the execution of the aim-setting sections frequently used in environmental regulation. Adjudication with legal ecology is understood to be rooted in normative sources but to be more transparent, open to scrutiny and to invite more evolved argumentative development than is currently the practice in civil law environmental adjudication. As such, the suggested approach might also benefit argumentation in the sphere of human rights and the environment in general – or any other field where aims ought to be balanced or value choice made visibile without compromising the requirements of legal certainty.

Citation

(2015) 1 Journal of Human Rights and the Environment 55-74

Publication

Taking aims seriously – how legal ecology affects judicial decision-making

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Rights with limits: biocultural rights – between self-determination and conservation of the environment (Sajeva)

Author

Guilia Sajeva

Keywords

Biocultural rights, conservation of the environment, indigenous peoples, local communities, stewardship

Abstract

Kabir Bavikatte has recently argued that a new ‘basket’ of group rights is emerging from the interpretation of multilateral environmental agreements, domestic law and case law, and from shifts in the development discourse and the struggles of communities. He refers to this new set of rights as ‘biocultural rights’ and defines them as being all the rights of indigenous peoples and local communities required to secure their stewardship role over their lands and waters. Biocultural rights build on two foundations: the self-determination and cultural diversity of indigenous peoples and local communities, and the conservation of the environment. This article suggests that the second foundation is what makes biocultural rights potentially more appealing than other human rights but that it is also the reason for their sui generis potential. Unlike human rights generally, biocultural rights seem to be aimed at protecting not only the interests of their right-holders, indigenous peoples and local communities, but also seem to protect a general interest of humankind in the conservation of the environment through the impositions of stewardship duties on rights-holders. Therefore, it is suggested that while biocultural rights provide a promising instrument for the promotion and protection of the interests of indigenous peoples and local communities, they also require such peoples and communities to be conscious of the fact that they, as biocultural rights-holders, take on a potentially inequitable duty towards environmental sustainability that limits their self-determination interests. The article explores some of the conceptual tensions emerging from this possibility and from the fact that indigenous peoples and local communities are presented as co-referents for the same umbrella of rights.

Citation

(2015) 1 Journal of Human Rights and the Environment 30-54

Publication

Rights with limits: biocultural rights – between self-determination and conservation of the environment

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Community stewardship: the foundation of biocultural rights (Bavikatte and Bennett)

Author(s)

Kabir Sanjay Bavikatte and Tom Bennett

Keywords

Biocultural rights, stewardship, property, environment, law, nature, indigenous people, customary law, commodity, post-development, political ecology, commons, Convention on Biological Diversity, Nagoya Protocol, traditional resource rights

Abstract

The term ‘biocultural rights’ denotes a community’s long established right, in accordance with its customary laws, to steward its lands, waters and resources. Such rights are being increasingly recognized in international environmental law. Biocultural rights are not simply claims to property, in the typical market sense of property being a universally commensurable, commodifiable and alienable resource; rather, as will be apparent from the discussion offered here, biocultural rights are collective rights of communities to carry out traditional stewardship roles vis-à-vis Nature, as conceived of by indigenous ontologies.

Citation

2015 1 Journal of Human Rights and the Environment 7-29

Paper

Community stewardship: The foundation of biocultural rights

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A Human Rights Assessment of Hydraulic Fracturing (EHRA)

Author

Environment and Human Rights Advisory

Keywords

Fracking, Hydraulic Fracturing, Human Rights, New York City

Abstract

This report assesses the human rights impacts of hydraulic fracturing

Citation

Report, Environment and Human Rights Advisory, 2011.

Publication

A Human Rights Assessment of Hydraulic Fracturing

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ESRC Funded PhD Studentship: GNHRE and Cardiff School of Law and Politics

Cardiff UniThe GNHRE is delighted to announce this project, based at Cardiff School of Law and Politics, in partnership with the GNHRE. The successful candidate will become part of a lively, well-supported and stimulating postgraduate community, working on a project with immense practical implications. The candidate will have unrivalled access to the GNHRE network, and extensive contact with the Mary Robinson Foundation: Climate Justice and with Incredible Edible Bristol. The policy relevant nature of the work and the networking opportunities built into the project offer a unique set of potential career prospects.

The project focus is on empirical analysis of grassroots engagements with climate justice. The first phase of the project involves a theoretical enquiry into the ontological and epistemic foundations underlying law and ‘participatory’ governance. The second phase involves working alongside community-facing organisations.

For information contact GrearA1@cardiff.ac.uk

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