Tag Archives: jurisprudence

Environmental Protection through the Jurisprudence of the European Convention on Human Rights (Loucaides)

Author(s)

Loukis Loucaides

Keywords

European Convention on Human Rights, environmental issues, environmental protection, individual rights and liberties, jurisprudence

Abstract

The European Convention on Human Rights (‘the Convention’) does not expressly protect the environment nor does it address environmental issues in any way—it does not provide for any relevant rights in respect of the environment as such. At the time of the drafting of the Convention, the environment was not one of the values that was intended to be protected. The basic objective of the Convention was to set out a corpus of legal rules aiming at the protection of democracy and of the basic rights and liberties of the individual versus the state. The traditional notion of individual human rights was not concerned with the protection of ecosystems, the atmosphere, or with environmental problems. In an early decision the European Commission of Human Rights (‘the Commission’) stated that ‘no right to nature preservation is as such included amongst the rights and freedoms guaranteed by the Convention’ with the result that an organisation set up to protest against military use of marshland was unable to claim infringement of any protected right. The Commission repeatedly stated that the provision regarding protection of property (Article  of Protocol No ) cannot be interpreted as guaranteeing a particular quality of environment. More recently the European Court of Human Rights (‘the Court’) stated that ‘neither Article  nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such; to that effect, other international instruments and domestic legislation are more pertinent in dealing with this particular aspect’.

Citation

(2004) 75 British Yearbook of International Law 249.

Paper

Environmental Protection through the Jurisprudence of the European Convention on Human Rights

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Procedural Rights as a Crucial Tool to Combat Climate Change (S. Kravchenko)

Author(s)

Svitlana Kravchenko

Keywords

human rights, procedural rights, combating climate change, freedom of expression, right to access information, right to participate in decision-making, access to justice, transparency, indigenous people, jurisprudence, human rights treaties, multilateral environmental agreements, civil society participation

Abstract

This Article will discuss how a subset of human rights – procedural rights – can play an important role in limiting climate change. These include freedom of expression and the right to seek and receive information, the right to participate in decision-making and the right of access to justice. States must address climate change through a transparent process of giving the public full and complete information during the early stages of decision-making in climate change related issues. States must also give the public a voice by allowing participation by all affected communities, including indigenous peoples.

In Part II, this Article will first discuss how freedom of expression and access to information are embedded in human rights treaties, multilateral environmental agreements, national constitutions and information laws, and in the jurisprudence of regional human rights and domestic courts, as well as national reporting and how these rights can be used for combating climate change. Part II will also briefly evaluate the right of investors to disclosure of climate risk information and the role of Securities and Exchange Commission (SEC) in light of the agency’s new interpretive guidance on existing public company disclosure requirements relating to the issue of climate change.

In Part III, this Article will discuss public participation in decision-making related to climate change, first exploring the established legal framework for public participation in “soft law” MEAs, and in environmental impact assessments (EIAs), including the transboundary context. Part III concludes by providing case examples how procedural rights have been used to combat climate change. Finally, Part IV will evaluate the role of civil society participation in the negotiation of an international treaty at the United Nations Framework Convention on Climate Change (UNFCCC) Fifteenth Session of the Conference of the Parties in Copenhagen, as well as the author’s participation in the Working Group on Human Rights and Climate Change.

Citation

(2010) 38 (3) Georgia Journal of International and Comparative Law 613

Paper

Procedural Rights as a Crucial Tool to Combat Climate Change

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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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Giving Nature Constitutional Protection: A Less Anthropocentric Interpretation of Environmental Rights (J. J. Bruckerhoff)

Author(s)

Joshua J. Bruckerhoff

Keywords

nature, anthropocentricism, constitutional rights, environmental rights, environmental health, environmental protection, biodiversity, jurisprudence

Abstract

Is it possible to use constitutional rights to protect the intrinsic value of nature? This question should seem somewhat paradoxical. Constitutional rights are, by their very nature, anthropocentric-they confer a right to people and to people only.1 This Note argues, nonetheless, that it is possible to use constitutional environmental rights to defend nature from environmental harm. Many countries (and some U.S. states) purport to grant their citizens a constitutional “right” to a healthy environment.2 These constitutional environmental rights remain largely untested in the courts;3 however, when they have been invoked, most courts have construed the right very narrowly. The courts hold that the right to a healthy environment only restricts state action that is likely to cause environmental harm that creates a signiflcant threat to human health, such as pollution.4

This current understanding and enforcement of environmental rights is flawed because it is too anthropocentric.  A right to a healthy environment should actually guarantee a healthy environment, not just an environment that satisfies minimal health standards for humans. This Note argues why environmental rights should protect nature’s biodiversity and how this goal can be accomplished within a workable constitutional-rights framework.

Scientists warn that human activities are threatening the survival of the world’s plant and animal life.5 Moreover, mounting evidence illustrates the importance of protecting nature’s biological diversity, or biodiversity.6 This evidence shows that biodiversity is critical to both overall environmental health and human well-being. Incorporating biodiversity protection into constitutional environmental rights will ensure that the rights will actually guarantee a truly healthy environment for present and future generations.7

There are two principal avenues for incorporating biodiversity considerations into environmental rights jurisprudence. First, the constitutional provision should link the concept of environmental rights with a broader definition of environmental health. Some current constitutions already accomplish this goal by not just guaranteeing a “livable” or “healthy” environment but by granting “a right to an ecologically balanced environment”8 or, stated more profoundly, a right to “a balanced and healthful ecology in accord with the rhythm and harmony of nature.”9 second, and more importantly, courts should interpret and apply environmental rights more broadly. Because courts are unlikely to expand environmental rights on their own initiative, advocates of environmental rights should (1) highlight the scientific evidence that illustrates the interrelationship between biodiversity and human health and (2) emphasize the nexus between cultural values-specifically the rights of indigenous peoples-and overall environmental health.10 Ultimately, this Note aims to establish a workable constitutional framework for how citizens could rely on environmental rights to protect biodiversity.

This Note is divided into five parts. Part I emphasizes the importance of biodiversity law in environmental protection and explains the differences between anthropocentrism and biocentrism. Part II explains why a constitutional environmental right should be part of a comprehensive environmentalprotection regime. It also presents an argument for why environmental rights should be less anthropocentric. Subsequently, Parts III and IV discuss the two principal avenues for incorporating biodiversity considerations within environmental rights jurispmdence. Part III discusses how the constitutional text itself affects both the enforceability and application of environmental rights. It explains why most environmental rights provisions have not been enforced and notes that even when courts have enforced the right, they have limited its reach. Therefore, it outlines how an effective environmental right should be written to guarantee that it provides biodiversity protection while remaining individually enforceable. …

Citation

(2008) 86 Texas Law Review 615

Paper

Note, Giving Nature Constitutional Protection: A Less
Anthropocentric Interpretation of Environmental Rights

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The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Rights to a Healthy Environment under International Law (S. Atapattu)

Author(s)

Sumudu Atapattu

Keywords

human right to a healthy environment, environmental protection, pollution, jurisprudence

Abstract

In an era that has witnessed much environmental destruction, as well as many strides taken to protect the environment, whether a new fundamental right to a clean environment should be recognized has become a hotly debated issue. Second perhaps only to the debate on sustainable development, the debate on the right to a healthy environment has attracted much jurisprudential debate with sharply divided views. 

It must be stressed at the outset that this discussion of a possible human right to a healthy environment should not be viewed as advocating an anthropocentric approach to environmental protection. Environmental issues encompass a much wider range of actors, affecting a much larger category of species than human rights violations. 

Citation

(2002) 16 Tulane Environmental Law Journal 65

Paper

The Right to a Healthy Life or the Right to Die Polluted?: The
Emergence of a Human Right to a Healthy Environment under International Law

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