Category Archives: Human Rights

Gas Flaring, Environmental Corporate Responsibility and the Right to a Healthy Environment: The Case of the Niger Delta (B.E. Umukoro)

Author

Brown E. Umukoro

Keywords

Human Rights, Environmental Rights, Right to Life, Constitutional Law, Nigeria, Oil, Public Policy

Extract

Introduction
[…]
In this chapter, we thus discuss the national legal framework for the continuation of gas flaring in Nigeria, the advancement of the concept of threat to right to life to include harmful activities of multinational companies and how these companies can be held accountable for the environmental degradation caused by oil exploration activities in Nigeria. It then closes with some valuable suggestions for strengthening the will of the Nigerian government in overcoming its weakness in the effective enforcement of environmental laws and policies.

Citation

(2009) in Law and Petroleum Industry in Nigeria: Current Challenges, 49, Eneri and Deinduomo (Eds.), Malthouse Law Books

Paper

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Environmental and Developmental Rights in the Southern African Development Community With Specific Reference to the Democratic Republic of Congo and the Republic of South Africa (K. Bindu)

Author

Kihangi Bindu

Keywords

Environmental rights, International Law, South Africa, Democratic Republic of Congo, Development, United Nations

Extract

Summary
This study examines the effectiveness of environmental and developmental rights within the SADC region, especially the status of their implementation and enforcement in the DRC and the RSA. The SADC Treaty recognizes implicitly the rights to environment and to development. Unfortunately, the unequivocal commitment to deal with human rights within the region is not translated with equal force into the normative framework established by the Treaty or into SADC’s programmed activities. No institution has been established with the specific mandate to deal with human rights issues, neither are there any protocols or sectors especially entrusted with human rights protection and promotion. The SADC member States do not share the same understanding or agenda on matters pertaining to the respect for, and the promotion, protection
and the fulfilment, of human rights at the regional level. The inception of environmental and developmental rights within the Constitution of the DRC is still in its infancy compared to the situation in South Africa. Implementation and enforcement remain poor and need important support from all organs of state and from the Congolese citizens. A strong regulatory framework pertaining to human rights (environmental and developmental rights) remains an urgent issue. Guidance may be found in the South African model for the implementation and enforcement of human rights, although the realization of the right to environment in South Africa is hampered by a number of factors that cause the degradation of the environment. Against South Africa’s socio-economic and political background, the constitutionalization of the right to development remains of critical concern to a sustainable future for all. The Congolese and South African peoples need to be made aware of their constitutional rights, especially their environmental and development rights, and the institutions and the mechanisms available to enforce them. They need to be empowered to demand justice as a right not as an act of charity. It is patently clear that the authorities will not protect the environment or tackle the development agenda unless there is a strong people’s movement to challenge the State and other role players over environmental and development issues and ethics.

Citation

(2010) submitted in accordance with the requirements for the degree of Doctor of Laws at the University of South Africa

Paper

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Breathing Life into Fundamental Principles: Implementing Constitutional Environmental Protections in Africa (C. Bruch, W. Coker, C. Arsdale)

Author

Carl Bruch, Wole Coker, & Chris Van Arsdale

Keywords

Human Rights, Right to a Healthy Environment, Comparative Law, Common Law, Islamic Law, Constitutional Law, Africa,

Extract

INTRODUCTION
Constitutional provisions offer broad and powerful tools for protecting the environment, but to date these tools have gone largely unutilized in Africa. Practically all African constitutions include substantive provisions that ensure either a “right to a healthy environment” or a “right to life,” which often is held to imply a right to a healthy environment in which to live that life. Additionally, the process of opening courts to citizens to enforce their constitutional rights strengthens the judiciary, empowers civil society, and fosters an atmosphere of environmental accountability.
This article explores how African constitutional provisions can be utilized to create real and enforceable environmental rights. African countries have common law, civil law, and Islamic legal traditions, as well as some hybrid systems. Nevertheless, these legal systems share many common underlying principles and values, particularly regarding the fundamental human rights embodied in their respective constitutions. This article highlights relevant provisions from the constitutions of 53 African countries – provisions that may be used to protect the environment – as well as cases from around the world that illustrate opportunities for implementing constitutional environmental rights. Additionally, given the constitutional reform processes currently underway in various African countries – such as Kenya, Tanzania, and the Democratic Republic of Congo (DRC and formerly Zaire) – this article examines the opportunities that such provisions present for improving environmental governance.

Citation

(2001) World Resources Institute Working Paper Series: Environmental Governance in Africa, WP#2

Paper

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Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa (C. Bruch)

Author

Carl Bruch

Keywords

Human Rights, Right to a Healthy Environment, Comparative Law, Common Law, Islamic Law, Constitutional Law, Africa,

Extract

Executive Summary

Constitutional provisions offer broad and powerful tools for protecting the environment, but to date these tools have gone largely unutilized in Africa. Practically all African constitutions include substantive provisions that ensure either a “right to healthy a environment” or a “right to life,” which often is held to imply a right to a healthy environment in which to live that life. Additionally, the process of opening courts to citizens to enforce their constitutional rights strengthens the judiciary, empowers civil society, and fosters an atmosphere of environmental accountability.

This research report explores how African constitutional provisions can be utilized to create real, enforceable environmental rights. African countries do have different legal traditions, namely, common law, civil law, and Islamic law, as well as some hybrid systems. Nevertheless, these legal systems share many common underlying principles and values, particularly fundamental human rights that are embodied in their respective constitutions.

This report highlights relevant provisions from the constitutions of 53 African countries (excluding the territories of the Canary Islands, the Madeira Islands, Reunion, and West Sahara) – provisions that may be used to protect the environment – as well as cases from around the world that illustrate opportunities for implementing constitutional environmental rights. Additionally, given the ongoing constitutional reforms in various African countries – such as Kenya, Tanzania, and Zaire/DRC – this report examines the opportunities that such provisions present for improving environmental governance, addressing issues of environmental and participatory rights, and ensuring implementation and enforcement.

Section I of this report discusses general considerations, including the nature of constitutions and constitutional law, how the different legal traditions in Africa could affect environmental protection, and the persuasive authority of cases from other jurisdictions in Africa and elsewhere in the world. Section II surveys the constitutional right to a healthy environment in Africa, and provides cases from African countries and elsewhere that illustrate how these constitutional provisions may be given force. Section III similarly explores how advocates and judges can apply and extend the constitutional right to life to include the right to a healthy
environment. Section IV examines various constitutional procedural rights that are essential to effective environmental protection. Section V presents some final thoughts realizing the promise of constitutional environmental protections.

Citation

(2001) World Resources Institute Working Paper Series: Environmental Governance in Africa, WP#2

Paper

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The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-sharing (L. Parks and E. Morgera)

Authors

Louisa Parks and Elisa Morgera

Keywords

benefit-sharing, international law, environmental law, human rights law, human rights, oceans law, regulation, national law, regional law, indigenous peoples, local communities, norm diffusion, scholarship, conservation, sustainability, natural resources, power asymmetry

Abstract

No systematic study discusses the evolution of fair and equitable benefit-sharing across various areas of international law (environment, human rights, oceans), as well as at different levels of regulation (regional and national laws and guidelines, private law contracts, transboundary codes of conduct, customary laws of indigenous peoples and local communities). This article explores the usefulness of an interdisciplinary approach to the study of norm diffusion for understanding how and why fair and equitable benefit-sharing is articulated in different sites. The article discusses mechanisms, actors and frames in norm diffusion, drawing on literature from sociology, international relations and law. The article uncovers underlying similarities in scholarship on norm diffusion across the disciplines considered. It also reflects on the value of an interdisciplinary approach that encourages legal scholars to consider the implications of power structures in the diffusion of law, while the nuances of legal knowledge may lead other social scientists to revisit accepted findings on norm diffusion. These findings appear particularly useful for informing an assessment of the potential of fair and equitable benefit-sharing to promote the conservation and sustainable use of natural resources in a fair and equitable manner in the face of power asymmetries.

Citation

(2015) 24:3 Review of European, Comparative and International Environmental Law 353-367

Paper

The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-sharing

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