Category Archives: Redress

Getting over the Hump: Establishing A Right to Environmental Protection for Indigenous Peoples in the Inter-American Human Rights System (T. Thompson)

Author

Travis Thompson

Keywords

Human Rights, International Law, Human Right to a Healthy Environment, Environmental Protection, Inter-American Human Rights System, Indigenous People, Inuit

Excerpt

Introduction
Climate change is threatening the traditional way of life for indigenous peoples and the Inter-American Human Rights System  declines to combat this growing problem by refusing to acknowledge a right to environmental protection for indigenous peoples. The Inter-American Human Rights System has thus effectively cut off the possibility of remedying the harms suffered by indigenous peoples as a result of climate change. Because the problems that indigenous peoples face place them at the intersection of human rights and environmental law, an acknowledged right to environmental protection is crucial to their ability to sustain their customary way of life. Until recently, many scholars simply felt that a right to environmental protection did not exist.  Inaction based on this assertion, however, becomes increasingly difficult to justify given the number of treaties, declarations, and decisions by domestic, regional, and international bodies specifically acknowledging such a right. Without acknowledging a right to environmental protection, and more importantly, without providing effective means to remedy environmental abuses in the international community, indigenous peoples will continue to be marginalized and ultimately may not be able to protect their time- honored way of life.
Using the Inuit tribe as a principal example, Part I of this paper will demonstrate the unique impact climate change has on indigenous peoples. Part I will begin by identifying the effects of climate change which already strain this indigenous community’s relationship with its traditionally inhabited land After mentioning the anticipated challenges the Inuit face in …

Citation

(2009) 19 Journal of Transnational Law and Policy 179

Paper

Getting over the Hump: Establishing A Right to Environmental Protection for Indigenous Peoples in the Inter-American Human Rights System

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International Legal Protection for Victims of Environmental Abuse (M.L. Schwartz)

Author(s)

Michelle Leighton Schwartz

Keywords

Human Rights, Right to life, Rights of indigenous peoples, procedural human rights, human right to a healthy environment, environmental refugees, desertification, flooding, international finance institutions, International Court of Justice, International Labour Organisation

Excerpt

Environmental disasters are increasing. They often result from human activities, such as the disposal of toxic chemicals, the generation of power, and the exploitation of oil. Mismanagement of natural resources has caused severe watershed erosion, desertification and atmospheric pollution which, in turn, have seriously impaired human life. Although the human suffering associated with environmental destruction is growing, international and regional human rights institutions have yet to clarify the obligations of governments to protect and provide remedies for these victims. This paper seeks to inspire such clarification and suggests legal and institutional reforms toward that end.

Citation

(1993) 18 Yale Journal of International Law 355

Paper

International Legal Protection for Victims of Environmental Abuse

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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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Claiming Environmental Rights: Some Possibilities Offered by the United Nations’ Human Rights Mechanisms (C. Dommen)

Author(s)

Caroline Dommen

Keywords

environmental rights, United Nations, mechanisms, redress, environmental harm

Abstract

Individuals and groups seeking to prevent environmental harm, or seeking reparation of such harm after it has occurred are likely to find that international human rights procedures and institutions provide interesting avenues for redress. This article will describe and evaluate ways the United Nations’ (U.N.’s) human rights procedures can be used by people seeking prevention and reparation of environmental harm, but it will not dwell on the more theoretical considerations of the substantive or procedural content of a right to a clean environment.

Citation

(1998) 11 Georgetown International Environmental Law Review 1

Paper

Claiming Environmental Rights: Some Possibilities Offered by the United Nations’ Human Rights Mechanisms

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General Authorisations as a Tool to Promote Water Allocation Reform in South Africa (A. Anderson, et al)

Author(s)

A. Anderson, G. Quibell, J. Cullis and N. Ncapayi

Keywords

Compulsory licensing, entitlements, general authorisation, public trust doctrine, redress, South Africa , water allocation reform

Abstract

South Africa faces significant inequities in access to and use of water for productive purposes. The National Water Act seeks to address these inequities and introduced a public rights system where water is owned by the people of South Africa and held in custody by the state. This public trust doctrine forms the basis for the State to give effect to its constitutional obligation for redress. Compulsory licensing is a mechanism to proactively reallocate water on a catchment basis to achieve redress, while at the same time promoting economic efficiency and ecological sustainability. During compulsory licensing, all users are required to reapply for their water use entitlement, and a process is followed to allow for a fairer allocation of water between competing users and sectors. Some concerns have been raised that equity may not be achieved through compulsory licensing as historically disadvantaged individuals may not have the capacity to partake in the process. Similarly, the administrative burden of processing large numbers of licences from small scale users may cripple licensing authorities. Moreover, the compulsory licensing process, while encouraging Historically Disadvantaged Individuals (HDIs) to apply, may have little impact on poverty if the poorest are not able to participate in the process. General authorisations are proposed as a way of addressing these concerns by setting water aside for specific categories of users. This paper introduces the concept of general authorisations in support of compulsory licensing and outlines some of the implementation challenges.

Citation

(2007) 3(2) Law, Environment and Development Journal 164

Paper

General Authorisations as a Tool to Promote Water Allocation Reform in South Africa

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