Category Archives: Land Rights

Environmental Justice, Human Rights, and the Global South (C. G. Gonzalez)

Author(s)

Carmen G. Gonzalez

Keywords

human rights, right to a healthy environment, environmental justice, Third World Approaches to International Law, TWAIL, North-South divide, World Bank, International Monetary Fund, colonialism, development, transnational corporations, Maastricht principles, extraterritoriality

Abstract

From the Ogoni people devastated by oil drilling in Nigeria to the Inuit and other indigenous populations threatened by climate change, communities disparately burdened by environmental degradation are increasingly framing their demands for environmental justice in the language of environmental human rights. Domestic and international tribunals have concluded that failure to protect the environment violates a variety of human rights (including the rights to life, health, food, water, property, and privacy; the collective rights of indigenous peoples to their ancestral lands and resources; and the right to a healthy environment).

Some scholars have questioned the utility of the human rights framework given the diminished governance capacity of many Third World states due to decades of intervention by international financial institutions and restrictions imposed by trade and investment agreements. Others have expressed doubts about the ability of human rights law to adequately articulate and advance the aspirations and resistance strategies of diverse grassroots social justice movements, and have warned about the susceptibility of human rights law and discourse to co-optation by powerful states to advance their own economic and political interests (for example, through “humanitarian intervention” in Third World states).

This article examines the promise and the peril of environmental human rights as a means of challenging environmental injustice within nations as well as the North-South dimension of environmental injustice. Drawing a distinction between human rights discourse as a tool of popular mobilization and human rights law as codified in legal instruments and enforced by international institutions, the article examines some of the limitations of human rights law as an instrument of resistance to environmental injustice and offers several strategies to enhance its emancipatory potential.

Citation

(2015) 13 Santa Clara Journal of International Law 151

Paper

Environmental Justice, Human Rights, and the Global South

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The Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights Within International Law (T. Ward)

Author(s)

Tara Ward

Keywords

Indigenous Rights, United Nations, Human Rights, International Labour Organisation, Self-Determination

Abstract

The right of indigenous peoples to free, prior, and informed consent (FPIC) in relation to development, infrastructure, and resource extraction projects is currently being debated within international law. Particularly contentious is the question of whether the right to FPIC is an existing customary international legal principle and if so, whether this constitutes a full veto right for the affected peoples. This article examines this question by analyzing the development of FPIC within international law and applying the current international standards to two distinct case studies. The first is the Lubicon Cree in Alberta, Canada, and the second is that of the Mayan Communities of Sipakapa and San Miguel Ixtahuacan, Guatemala. Ultimately, these two cases demonstrate how similar violations of indigenous peoples rights can occur in two very different contexts.

While the most explicit expression of FPIC is found in the United Nations Declaration on the Rights of Indigenous Peoples, by examining the jurisprudence of the United Nations Human Rights system, International Labour Organisation Treaty system, and Inter-American Human Rights system, it is clear that the various treaty bodies are interpreting existing rights to culture, property, and non-discrimination as the right of indigenous peoples to participate in decisions that impact their lands or resources. Although it is clear that as of yet the right to full FPIC is not part of customary international law, there is a well-defined consensus that States at a minimum have an obligation to consult with indigenous peoples in good faith with regard to any projects found within their lands or which impact traditionally used resources.

Furthermore, this analysis, which consists of both of the above-mentioned case studies and international human rights jurisprudence, highlights the extent of the gap that exists between the standards being developed and current State practice. In the end, this article finds that in order to effectively implement the FPIC and other participation rights, consultations must be recognised as expressions of the right to self-determination and not merely as administrative procedures.

Citation

(2011) 10 Northwestern Journal of International Human Rights 54

Paper

The Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights Within International Law

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Indigenous Rights Entwined with Nature Conservation (E. Desmet)

Author(s)

Ellen Desmet

Keywords

indigenous rights, conservation, biodiversity

Abstract

Heightened public awareness of the ever increasing loss of biodiversity has led to louder calls for effective nature conservation efforts. Most remaining biodiversity-rich areas are inhabited or used by indigenous peoples and local communities. In recent years a new ‘paradigm’ of ‘nature conservation with respect for the rights of indigenous peoples and local communities’ has emerged. Two questions arise: What exactly does this policy shift mean in terms of international human rights law? And how has this new paradigm been translated and applied at the national and local level?

This study investigates how nature conservation initiatives interact with the rights of indigenous peoples and local communities from a human rights and legal anthropological perspective. The book is distinctive in that it provides a comprehensive review of international human rights law in the context of nature conservation; a critical appraisal of Peruvian nature conservation legislation in relation to the rights of indigenous peoples and local communities; and a thorough analysis of the interaction between three levels of regulation: the international level of human rights, the national level of Peru, and the local level of a specific protected area (the Güeppí Reserved Zone). It is based on extensive field work.

Citation

(2011) Intersentia

Paper

Indigenous Rights Entwined with Nature Conservation 

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Climate Change Adaptation and the Structural Transformation of Environmental Law (J. B. Ruhl)

Author(s)

J. B. Ruhl

Keywords

climate change, environmental law, greenhouse gas emissions, adaptation, mitigation, policy, pollution, land law, decision methods, regulation, conciliation

Abstract

The path of environmental law has come to a cliff called climate change, and there is no turning around. As climate change policy dialogue emerged in the 1990s, however, the perceived urgency of attention to mitigation strategies designed to regulate sources of greenhouse gas emissions quickly snuffed out meaningful progress on the formulation of adaptation strategies designed to respond to the effects of climate change on humans and the environment. Only recently has this “adaptation deficit” become a concern now actively included in climate change policy debate. Previously treating talk of adaptation as taboo, the climate change policy world has begrudgingly accepted it into the fold as the reality of failed efforts to achieve global mitigation policy has combined with the scientific evidence that committed warming will continue the trend of climate change well into the future regardless of mitigation policy success.

But do not expect adaptation policy to play out for environmental law the way mitigation policy has and is likely to continue. Mitigation policy has been framed as an initiative primarily within the domain of environmental law – a form of pollution control on steroids – and thus it will be environmental law that makes the first move and other policy realms that apply support or pushback. By contrast, environmental law does not “own” adaptation policy; rather, numerous policy fronts will compete simultaneously for primacy and priority as people demand protection from harms and enjoyment of benefits that play out as climate change moves relentlessly forward. This makes it all the more pressing for environmental law, early in the nation’s formulation of adaptation policy, to find its voice and establish its place in the effort to close the adaptation deficit.

Toward that purpose, this Article examines the context and policy dynamics of climate change adaptation and identifies ten trends that will have profound normative and structural impacts on how environmental law fits in: 1) Shift in emphasis from preservationism to transitionalism in natural resources conservation policy. 2) Rapid evolution of property rights and liability rules associated with natural capital adaptation resources. 3) Accelerated merger of water law, land use law, and environmental law. 4) Incorporation of a human rights dimension in climate change adaptation policy. 5) Catastrophe and crisis avoidance and management as an overarching adaptation policy priority. 6) Frequent reconfigurations of trans-policy linkages and trade-offs at all scales and across scales. 7) Shift from “front end” decision methods relying on robust predictive capacity to “back end” decision methods relying on active adaptive management. 8) Greater variety and flexibility in regulatory instruments 9) Increased reliance on multi-scalar governance networks. 10) Conciliation.

Citation

(2009) 40 Environmental Law 343

Paper

Climate Change Adaptation and the Structural Transformation of Environmental Law

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Human Rights Violations and Climate Change: The Last Days of the Inuit People? (S. Nuffer)

Author

Sarah Nuffer

Keywords

human rights violations, climate change, Inuit, Arctic, vulnerability, responsibility, future generations, United Nations, native groups, indigenous people

Excerpt

INTRODUCTION

The climate is changing. There is little debate left with regard to this statement. However, the world is still grappling with what exactly this change means. The Secretary General of the United Nations, Ban Ki-moon, recently stated that he is “convinced that climate change, and what we do about it, will define us, our era, and ultimately the global legacy we leave for future generations.” 3 Global Climate Change (“GCC”) has the potential to affect the world’s most developed groups, however, the people whose lives will likely be changed most by GCC are those who have “contribute[d] the least to greenhouse emissions.” 4

One of the groups that will be most affected by GCC are the Inuit of the Arctic region. There is a large degree of certainty that the Arctic’s climate is changing and as a result the Inuit people are being forced to change their way of life, their cultural identity, and in some cases, they are being forced to leave their ancestral lands. While the Inuit people must pay the “highest price … [and] are directly threatened by these rapid climatic changes” 5 because of their traditional way of life, they contributed little to GCC. This unfortunate paradigm, that those most affected by GCC are not responsible for its creation, is a theme that runs tragically true for many native people that lead a traditional and near carbon-free life. This Note will explore the effects of GCC on the Inuit people …

Citation

(2010) 37 Rutgers Law Record 182.

Paper

Human Rights Violations and Climate Change: The Last Days of the Inuit People?

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