Category Archives: Common Law

The Judicial Recognition and Enforcement of the Right to Environment: Differing Perspectives from Nigeria and India (R. Temitope Ako)

Author

Rhuks Temitope Ako

Keywords

Human Rights, Environmental Rights, Comparative Law, Common Law, Constitutional Law, Nigeria, India, Political Economy, Oil

Abstract

Environmental rights are one of the emerging rights in the arena of international human rights law and international environmental law. This paper analyses the judiciary’s roles in advancing the right to a healthy environment in Nigeria and India. These two countries have certain similarities and yet there exists a remarkable difference between the levels of recognition of the right to environment in both countries. The concept of environment rights will be traced by drawing the link between the environment, human rights and sustainable development. Further, the Nigerian oil industry has impacts on the country’s political economy and the environment of host-communities. In fact, there are reasons why there are certain peculiarities that Nigerian courts face in deciding oil-related environmental cases. An analysis of legal provisions and statutes of both the countries will be presented to highlight the status of the right to environment.

Citation

(2010) 3 National University of Juridical Sciences Law Review 423

Paper

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The Right to a Satisfactory Environment and the Africa Commission (K. Ebeku)

Author

Kaniye Ebeku

Keywords

Human Rights, Right to a Healthy Environment, Comparative Law, Common Law, Islamic Law, Constitutional Law, Africa, Nigeria, Oil

Extract

Summary
This article emphasises that the right to a satisfactory, healthy or clean environment is enshrined in over 60 constitutions from all regions of the world. Moreover, it is suggested that there is an increasing trend by victims of environmental damage to invoke human rights for protection and redress. National courts and global and regional human rights monitoring bodies, such as the UN Human Rights Committee and the Inter-American Commission, have addressed this issue. It is encouraging that the African Commission recently decided a case concerning the impact of oil operations in the Niger Delta, concluding that the African Charter recognises the importance of a clean and safe environment. The decision recognises a nexus between socio-economic rights and the right to environment to the extent that the environment affects the quality of life and safety of individuals and groups. In finding Nigeria in violation of the Charter, the Commission stated that the right to a satisfactory environment ‘requires the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources’.

Citation

(2003) 3 African Human Rights Law Journal 150

Paper

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Breathing Life into Fundamental Principles: Implementing Constitutional Environmental Protections in Africa (C. Bruch, W. Coker, C. Arsdale)

Author

Carl Bruch, Wole Coker, & Chris Van Arsdale

Keywords

Human Rights, Right to a Healthy Environment, Comparative Law, Common Law, Islamic Law, Constitutional Law, Africa,

Extract

INTRODUCTION
Constitutional provisions offer broad and powerful tools for protecting the environment, but to date these tools have gone largely unutilized in Africa. Practically all African constitutions include substantive provisions that ensure either a “right to a healthy environment” or a “right to life,” which often is held to imply a right to a healthy environment in which to live that life. Additionally, the process of opening courts to citizens to enforce their constitutional rights strengthens the judiciary, empowers civil society, and fosters an atmosphere of environmental accountability.
This article explores how African constitutional provisions can be utilized to create real and enforceable environmental rights. African countries have common law, civil law, and Islamic legal traditions, as well as some hybrid systems. Nevertheless, these legal systems share many common underlying principles and values, particularly regarding the fundamental human rights embodied in their respective constitutions. This article highlights relevant provisions from the constitutions of 53 African countries – provisions that may be used to protect the environment – as well as cases from around the world that illustrate opportunities for implementing constitutional environmental rights. Additionally, given the constitutional reform processes currently underway in various African countries – such as Kenya, Tanzania, and the Democratic Republic of Congo (DRC and formerly Zaire) – this article examines the opportunities that such provisions present for improving environmental governance.

Citation

(2001) World Resources Institute Working Paper Series: Environmental Governance in Africa, WP#2

Paper

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Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa (C. Bruch)

Author

Carl Bruch

Keywords

Human Rights, Right to a Healthy Environment, Comparative Law, Common Law, Islamic Law, Constitutional Law, Africa,

Extract

Executive Summary

Constitutional provisions offer broad and powerful tools for protecting the environment, but to date these tools have gone largely unutilized in Africa. Practically all African constitutions include substantive provisions that ensure either a “right to healthy a environment” or a “right to life,” which often is held to imply a right to a healthy environment in which to live that life. Additionally, the process of opening courts to citizens to enforce their constitutional rights strengthens the judiciary, empowers civil society, and fosters an atmosphere of environmental accountability.

This research report explores how African constitutional provisions can be utilized to create real, enforceable environmental rights. African countries do have different legal traditions, namely, common law, civil law, and Islamic law, as well as some hybrid systems. Nevertheless, these legal systems share many common underlying principles and values, particularly fundamental human rights that are embodied in their respective constitutions.

This report highlights relevant provisions from the constitutions of 53 African countries (excluding the territories of the Canary Islands, the Madeira Islands, Reunion, and West Sahara) – provisions that may be used to protect the environment – as well as cases from around the world that illustrate opportunities for implementing constitutional environmental rights. Additionally, given the ongoing constitutional reforms in various African countries – such as Kenya, Tanzania, and Zaire/DRC – this report examines the opportunities that such provisions present for improving environmental governance, addressing issues of environmental and participatory rights, and ensuring implementation and enforcement.

Section I of this report discusses general considerations, including the nature of constitutions and constitutional law, how the different legal traditions in Africa could affect environmental protection, and the persuasive authority of cases from other jurisdictions in Africa and elsewhere in the world. Section II surveys the constitutional right to a healthy environment in Africa, and provides cases from African countries and elsewhere that illustrate how these constitutional provisions may be given force. Section III similarly explores how advocates and judges can apply and extend the constitutional right to life to include the right to a healthy
environment. Section IV examines various constitutional procedural rights that are essential to effective environmental protection. Section V presents some final thoughts realizing the promise of constitutional environmental protections.

Citation

(2001) World Resources Institute Working Paper Series: Environmental Governance in Africa, WP#2

Paper

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Human Rights and the Environment: Problems and Possibilities (D. Shelton)

Author

Dinah Shelton

Keywords

Human Rights, Environmental Protection, Economic Incentives and Disincentives, Regulatory Measures, Criminal law,  Private Liability Regimes

Abstract

In the space of one week in the second half of August, 2007, two non-governmental organizations, an intergovernmental organization, a leading US law school, a major foundation, and the government of a small island developing state all telephoned my office to inquire about taking a rights-based approach to the problem of global climate change. While the linkages between human rights and environmental protection have been increasingly strengthened in the 35 years since the Stockholm Conference on the Human Environment, the calls were evidence that the present concern with climate change has accelerated and broadened consideration of the utility of a rights-based approach to environmental protection. Various analytical constructs can be invoked in law in order to protect the natural world and ecological processes on which life depends: economic incentives and disincentives, regulatory measures, criminal law, and private liability regimes all form part of the framework of international and national environmental law.

Citation

(2008) 38 Environmental Policy and Law 41

Paper

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