Category Archives: Environmental Security

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, Human Development, and the Right to a Healthy Environment: An Analytical Framework (M.J. Rogge)

Author(s)

Malcom James Rogge

Keywords

Human Rights, Development, Human Right to a Healthy Environment, Public Participation,

Abstract

This paper provides a framework for understanding the profound interrelationship of human rights, human development, and the right to a healthy environment. The author argues that concerted public action in environmental affairs is necessary for true advancement in human development, and for the broad attainment of the whole range of human rights in society. Human dignity consistent with the realization of human rights is only possible where steps are taken to protect the environments on which people depend for their basic needs. The author links the normative position implied in human rights theory to the practical and prescriptive ideas of human development. In conclusion, the author argues that improving environmental conditions goes hand in hand with improving levels of human development and in promoting human rights.

Citation

(2001) 22 Canadian Journal of Development Studies 33-50

Paper

Human Rights, Human Development, and the Right to a Healthy Environment: An Analytical Framework

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Humanitarian Law, Protection of the Environment, and Human Rights (N.A.F. Popovic)

Author(s)

Neil A. F. Popovic

Keywords

Human Rights, International Humanitarian Law, Environmental Destruction, Armed Conflict

Excerpt

Notwithstanding the relevance of international human rights to wartime environmental destruction, the international community tends to deal with war-related environmental harm through the modalities of humanitarian law. Although humanitarian law extensively regulates the conduct of war, that framework has neither proven effective in dealing with the environmental impact of war, nor does it provide remedies for affected people.

This comment proposes that increased accessibility of pertinent procedures, including human rights procedures, could provide useful mechanisms for addressing the environmental impact of armed conflict. Part II of the comment discusses the nature and extent of environmental problems associated with armed conflict. Part III discusses relevant legal principles and their limitations in relieving the environmental toll of war. Part IV presents several proposals for enhancing environmental protection in armed conflict. Part V concludes that it is necessary to expand the traditional scope of procedural and substantive mechanisms in order to ensure effective dealing with the environmental impact of war and the availability of remedies for the affected people.

Citation

(1995-6) 8 Georgetown International Environmental Law Review 67-133

Paper

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Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence (N. A. Patel, K. Petlakh)

Authors

Nehal A. Patel and Ksenia Petlakh

Keywords

mindful, legal theory, non-western, Gandhi, jurisprudence, transnational, international, human rights, environment, corporation, industrial

Abstract

For decades, activists and academics have been lamenting the disparate impact of global environmental decay on populations less endowed with legal resources. However, the implicit biases of legal theory itself remain unchallenged even when global resource disparities are addressed. Little attention has been given in transnational jurisprudence to how the thought sub structures of modern legal theory contain dispositions that advantage privileged interests and hamper transnational environmental justice efforts.

How can transnational jurisprudence change to become more mindful of the environmental impacts disproportionately experienced by the disempowered, and what conception of global society shall the law embody such that it earns the voluntary submission of the people? We explore these questions with a speculation on how Gandhi’s thought applies to transnational environmental jurisprudence. Gandhi’s thought contains four components that contain the necessary ingredients to evaluate the dominant frames that debilitate global environmental justice efforts. First, Gandhi presented his own construction of the individual’s relationship to the physical and social environments. Second, Gandhi’s thought defines the relationships between societies in a way that is free of Western assumptions of global governance. Third, his thought contains a critique of industrialization and presents a powerful alternative. Fourth, his thought contains a reconstruction of the purpose and function of law and legal systems for a world in which “progress” includes social equality and environmental protection. Comprehensively, Gandhi’s thought reinvigorates a decayed relationship between global environmental justice and transnational environmental jurisprudence by simultaneously redefining the human-environment relationship, legal theory, and dominant Western assumptions of the relationships between nations.

We directly apply Gandhi’s thought to the case law that resulted from the Bhopal chemical disaster, which is widely considered the worst industrial disaster in world history. Applying Gandhi’s thought to the Bhopal cases is useful for two reasons. First, the Bhopal cases contain several core legal doctrines that appear regularly in transnational cases. Second, there is a profound power imbalance between the civilians and the corporation that highlights the case’s relevance to global environmental justice. Through our analysis of the legal principles and the parties’ arguments in this case law, we illustrate our conception of a mindful jurisprudence of the transnational environment.

Citation

N. A. Patel and K. Petlakh, Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence (2014) Vol. 30, Harvard Journal on Racial & Ethnic Justice

Paper

Gandhi’s Nightmare: Bhopal and the Need for a Mindful Jurisprudence

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A Moral Imperative: The Human Rights Implications of Climate Change (S. C. Aminzadeh)

Author

Sara C. Aminzadeh

Keywords

climate change, environment, human rights, social rights, food security, public health, livelihoods

Abstract

Climate change is increasingly identified as one of the major crises facing the international community in the 21st century. Even conservative forecasts predict dramatic effects to environments, economies, and people around the world. Although climate change is already understood as an environmental problem, and increasingly as an economic one,  the social and human rights implications of climate change are given little discussion. Yet climate change threatens food security, public health, property, and the livelihoods and lives of members of affected communities. Like other environmental issues, climate change threatens the human rights of those living in affected communities.

The ultimate goal of climate change advocacy is to encourage nations to scale back their greenhouse gas (GHG) emissions to a point where GHG concentrations in the atmosphere stabilize and then decrease to a level that prevents dangerous anthropogenic interference with the climate system. However, the sheer size of the problem and the cost of mitigation have forestalled meaningful engagement and cooperation on the issue. Lawyers and environmental advocates have begun to use litigation and other legal avenues as a way to forge progress. One particularly innovative example is a team of lawyers who recently used a human rights approach to climate change in a petition filed on behalf of the Inuit Circumpolar Conference in the Inter-American Commission on Human Rights (IACHR). 

This note aims to continue the discourse prompted by the Inuit Petition and explore related issues on climate change and human rights…

Citation

(2007) 30 Hastings International and Comparative Law Review 231.

Paper

A Moral Imperative: The Human Rights Implications of Climate
Change

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