Category Archives: International Law

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

Facebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail

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

Facebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail

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

Facebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail

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

Facebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail

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

Facebooktwittergoogle_pluspinterestlinkedintumblrmailFacebooktwittergoogle_pluspinterestlinkedintumblrmail