Category Archives: Access to Justice

Rethinking environmental rights: climate change, conservation and the ECJ (P. Sands)

Author

Professor Philippe Sands QC (Lecture)

Keywords

Environmental rights; climate change; conservation; Christopher Stone; anthropocentric; standing (locus standi); NGOs; Principle 10 UNRCED (Rio); European Court of Justice; Aarhus Convention; lack of legal accountability.

Abstract

The article was initially a lecture given at the David Hall Memorial Lecture (11th June 2008). It commences by referring to Stones seminal article ‘Should trees have standing’ (available on GNHRE) and hence reveals that rights to protect the environment are problematic from a conservationists standpoint as such rights are anthropocentric in nature. When the state fails to protect the environment who has standing to bring proceedings? Although in England and Wales the law has come a long way to allow NGOs and individuals standing to bring an action to challenge a ‘failure of the state to give effect to its environmental obligations’ this is unfortunately not the position in the European Court of Justice. Despite flouting the Principles and Articles of both binding treaties and ‘soft law’ documents the European Community institutions continue to deny the concerned individual and NGOs the right to protect the environment.

Citation

(2008) 20(3) Environmental Law and Management, 120-126.

Paper

Rethinking environmental rights: climate change, conservation and the European Court of Justice.

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Night flights and environmental human rights (D. Hart & M. Wheeler)

Author(s)

David Hart and Marina Wheeler

Keywords

Air routes; Causes of action; Environmental protection; Margin of appreciation; Noise; Right to effective remedy; Right to respect for private and family life.

Abstract

Explores the scope and implications of the Grand Chamber of the European Court of Human Rights judgment in Hatton v United Kingdom (36022/97) on the substantive merits of the Government’s decision on night flights from Heathrow airport and whether the decision was compatible with the applicants’ rights under the European Convention on Human Rights 1950 Art.8, and whether the decision making process itself accorded due weight to the interests of the individual. Addresses the margin of appreciation to be afforded to the Government when striking a fair balance between the competing interests of the individual and the community as a whole. Considers whether judicial review was not an effective remedy for the purpose of the European Convention on Human Rights 1950 Art.13 in respect of the alleged infringement of the applicants’ rights under Art.8.

Citation

(2004) 16 Journal of Environmental Law 132-139.

Paper

Night flights and environmental human rights.

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Forests, climate change and human rights: managing risks and trade-offs (F. Seymour)

Author

Frances Seymour

Keywords

Tropical deforestation, international agenda, human rights, climate change, forest governance, mitigation of forest-based emissions, procedural rights, Aarhus Convention, justice and equity, risks, trade-offs

Abstract

Following the decline over the years of interest relating to tropical deforestation, that was highlighted at the Rio Conference in 1992 (UNCEC), in recent years it has seemingly reappeared on the international agenda as has linked overwhelmingly to climate change. The Stern Review (2007) asserted that controlling deforestation was ‘one of the least expensive strategies for reducing emissions’ and subsequently reducing emissions from deforestation and degradation (REDD) is a focal point of global and national mitigation strategies. Aside from the environmental consequences of deforestation management of tropical forests is relevant to human rights owing, in part, to many of the world’s poorest people being dependent on forests for their survival and livelihoods. Unclear property rights, the absence of public scrutiny and historically repressive state actions are all socio-economic characteristics that contribute to climate change whilst infringing human rights. This article/chapter acts as an overview concerning the interconnection of deforestation, climate change and human rights issues.

Citation

Frances Seymour, Human Rights and Climate Change (CUP, Cambride 2010), Ch. 7, 207.

Paper

Forests, climate change, and human rights: managing risks and trade-offs.

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Should trees have standing? Towards legal rights for natural objects (C. Stone).

Author

Christopher Stone

Keywords

Development of rights, development of children’s rights, standing for ‘natural objects’.

Abstract

This article, from the era when the birth of modern environmentalism and conservationism arguably emanated, is an abstract but serious attempt to propose that forests, oceans and rivers, in fact the entire natural environment, should be afforded legal rights. The piece explains that the granting of new rights involves two aspects; first, legal-operational aspects and second psychic and socio-psychic aspects. The author argues that it would be seemingly ridiculous to state that ‘natural objects’ should have no rights to seek legal redress merely because they cannot speak up for themselves. It is considered normal for corporations, who cannot speak, to employ lawyers to act on their behalf; the same can be said for states, estates, children etc. The mentally incompetent or any person that is incapable of managing their own affairs is provided, by the courts, with someone who can whilst a business entity that has become ‘incompetent’ is, for example, appointed a trustee in bankruptcy; conceivably someone could apply to the courts to be the ‘guardian’ of a natural object that is perceived to be in danger.

Citation

(1972) 45 Southern California Law Review 450

Paper

Should trees have standing? Towards legal rights for natural objects.

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Developing Substantive Environmental Rights (D. Shelton)

Developing Substantive Environmental Rights (D. Shelton)
Author

Dinah Shelton

Keywords

Environmental rights, precaution, pollution, right to health, procedural rights, access to justice, risk

Abstract

Human rights tribunals facing claims of violations stemming from environmental degradation are increasingly incorporating and applying national and international environmental standards to assess whether or not the government in question has complied with its legal obligations. The government is required to comply with whatever environmental laws it has enacted as well as treaties to which it is a party. Furthermore the tribunals will assess, albeit with considerable deference, whether or not the environmental laws set the level of protection too low to allow the enjoyment of guaranteed human rights, in some instances drawing on the precautionary principle and other concepts from environmental law.

Citation

(2010) 1 Journal or Human Rights and the Environment 89

Paper

Developing Substantive Environmental Rights

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