Category Archives: Socio-Economic Rights

Climate Change and Indigenous Peoples: The Search for Legal Remedies (eds. R. S. Abate and E. A. Kronk)

Editors

Randall S. Abate and Elizabeth Ann Kronk

Keywords

environment, climate change, environmental law, law – academic, environmental law, human rights, law and development, politics and public policy, human rights, Asia, Kenya, Arctic, South America, Pacific Island Nations, Australia, New Zealand, Africa, indigenous rights, sovereignty, climate justice, adaptation, equality, water rights, Aboriginal communities

Abstract

Indigenous peoples occupy a unique niche within the climate justice movement, as many indigenous communities live subsistence lifestyles that are severely disrupted by the effects of climate change. Additionally, in many parts of the world, domestic law is applied differently to indigenous peoples than it is to their non-indigenous peers, further complicating the quest for legal remedies. The contributors to this book bring a range of expert legal perspectives to this complex discussion, offering both a comprehensive explanation of climate change-related problems faced by indigenous communities and a breakdown of various real world attempts to devise workable legal solutions. Regions covered include North and South America (Brazil, Canada, the US and the Arctic), the Pacific Islands (Fiji, Tuvalu and the Federated States of Micronesia), Australia and New Zealand, Asia (China and Nepal) and Africa (Kenya).

PART I INTRODUCTORY CONTEXT AND PRINCIPLES
1. Commonality among unique indigenous communities: an
introduction to climate change and its impacts on indigenous
peoples 3
Randall S. Abate and Elizabeth Ann Kronk
2. Introduction to international and domestic climate change
regulation 19
Deepa Badrinarayana
3. Introduction to indigenous peoples’ status and rights under
international human rights law 39
Lillian Aponte Miranda
4. Introduction to indigenous sovereignty under international
and domestic law 63
Eugenia Charles-Newton and Elizabeth Ann Kronk
5. Climate change and indigenous peoples: comparative models
of sovereignty 79
Rebecca Tsosie
6. Indigenous environmental knowledge and climate change
adaptation 96
Maxine Burkett

Climate change and indigenous peoples
PART II GLOBAL PERSPECTIVES
International Organizations
7. REDD+: its potential to melt the glacial resistance to
recognize human rights and indigenous peoples’ rights at the
World Bank 123
Leonardo A. Crippa
South America
8. REDD+ and indigenous peoples in Brazil 151
Andrew Long
9. REDD+: climate justice or a new face of manifest destiny?
Lessons drawn from the indigenous struggle to resist
colonization of Ojibwe Forests in the nineteenth and twentieth
centuries 178
Philomena Kebec
Lower 48 States of the United States of America
10. Natural resource development and indigenous peoples 199
Sarah Krakoff and Jon-Daniel Lavallee
11. Climate change and tribal water rights: removing barriers to
adaptation strategies 218
Judith V. Royster
Arctic
12. Canadian indigenous peoples and climate change: the
potential for Arctic land claims agreements to address
changing environmental conditions 243
Sophie Thériault
13. America’s Arctic: climate change impacts on indigenous
peoples and subsistence 263
Peter Van Tuyn
14. The Saami facing the impacts of global climate change 287
Irina L. Stoyanova
15. Complexities of addressing the impacts of climate change on
indigenous peoples through international law petitions: a case
study of the Inuit Petition to the Inter-American Commission
on Human Rights 313
Hari M. Osofsky

Pacific Island Nations
16. Climate change, legal governance and the Pacific Islands: an
overview 339
Erika J. Techera
17. Fiji: climate change, tradition and Vanua 363
Victoria Sutton
18. Islands in the stream: addressing climate change from a small
island developing state perspective 377
Clement Yow Mulalap
19. The rising tide of international climate litigation: an
illustrative hypothetical of Tuvalu v Australia 409
Keely Boom
Asia
20. The impacts of climate change on indigenous populations in
China and legal remedies 441
Wenxuan Yu, Jingjing Liu and Po Dong
21. Changing climate and changing rights: exploring legal and
policy frameworks for indigenous mountain communities in
Nepal to face the challenges of climate change 468
J. Mijin Cha
Australia and New Zealand
22. Climate change impacts to Aboriginal and Torres Strait
Islander communities in Australia 493
Megan Davis
23. Negotiating climate change: Māori, the Crown and New
Zealand’s Emission Trading Scheme 508
Naomi Johnstone
Africa
24. Climate change, law and indigenous peoples in Kenya:
Ogiek and Maasai narratives 535
Patricia Kameri-Mbote and Elvin Nyukuri

Citation

2013. Climate Change and Indigenous Peoples: The Search for Legal Remedies, eds. Randall S. Abate and Elizabeth Ann Kronk. Cheltenham: Elgar.

Paper

Climate Change and Indigenous Peoples: The Search for Legal Remedies

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Pursuing Environmental Justice with International Human Rights and State Constitutions (Neil A. F. Popovic)

Author

Neil A.F. Popovic

Keywords

environmental justice, environmental rights, international human rights, state constitution, environmental racism, environmental degradation, poverty, social rights, environmental hazards, inequality, civil rights

Extract

I. Introduction

Notwithstanding the constitutional guarantee of equal protection of the law, environmental racism thrives in the United States. Its manifestations include toxic waste dumps on indigenous lands, hazardous industrial facilities in communities of color, lead paint in decrepit housing projects, and use of dangerous pesticides in industrial agriculture. Environmental racism feeds on and perpetuates the social, economic and political marginalization of low-income communities and communities of color. As such, environmental racism in the United States represents a serious blight on the country’s human rights record.

Discriminatory siting decisions for environmentally hazardous facilities and uneven enforcement decisions do not necessarily result from consciously racist policy choices. More likely, they issue from a political and social system that marginalizes the participation and concern of communities of color, often through ostensibly neutral criteria. The effect, however, is no less racist than overt discrimination.

The United States has a substantial body of both environmental and civil rights laws, but none of these laws addresses the link between racism and environmental quality. 2 At best, environmental laws can enhance protection of the environment while civil rights laws can facilitate the rectification of overt racial discrimination. Neither body of law, however, addresses the impact of environmental degradation on human communities, and neither deals specifically with environmental racism.

Citation

(1996) 15 Stanford Environmental Law Journal 338 pp. 344-47

Paper

Pursuing Environmental Justice with International Human Rights and State Constitutions

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Workers’ Rights and Pollution Control in Delhi (K.D. Alley & D. Meadows)

Authors

K.D. Alley & D. Meadows

Keywords

Human Rights, Environmental Rights, Constitutional Law, India, Right to a Clean Environment, Pollution

Abstract

Within India’s judicial interpretation of constitutional rights there exists a close link between environmental values and human rights. Yet in some instances court cases defending the right to a clean environment have actually jeopardized the job security of India’s poorest laborers and have led to abuses of human rights. One such example is the 1995 Supreme Court case MC Mehta v. Union of India, which ordered the closure and relocation of polluting industries in Delhi. In this instance the Court responded to middle-class appeals for pollution remediation through a broad reading of the constitution’s fundamental right to life principle, at the same time adversely affecting tens, even hundreds, of thousands of the city’s poorest workers.

The spotty interest of the government’s legislative and executive branches in addressing the environmental problems created by both private and public sector development initiatives has provided the impetus for legal activism in India. Parliament has enacted environmental legislation, but enforcement has been profoundly lax, and governmental pollution control boards have been lenient in regulating industrial and vehicular emissions and industrial and municipal waste treatment facilities. Moreover, projects involving air and water pollution, massive human displacement, and the destruction of natural ecosystems continue to go forward with the imprimatur of formal administrative approval, based on only perfunctory or formalistic compliance with regulatory norms.

Citation

(2004) 11 Human Rights Dialogue 15

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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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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