Category Archives: Jurisprudence

Swiss climate case rejected, could proceed to Federal Supreme Court next

Zurich, Switzerland, 7 December 2018 – In conflict with overwhelming scientific evidence, the Swiss Federal Administrative Court has ruled that women over 75 years old are not more impacted by the effects of climate change than other population groups. The court rejected a case led by the group Senior Women for Climate Protection Switzerland and four individual complainants [1]. The decision prevents senior women and other vulnerable groups from demanding the protection of fundamental human rights threatened by climate change.

The group of more than 1100 senior women now has 30 days to take the case to the highest court in Switzerland, the Federal Supreme Court.

In response, Rosmarie Wydler-Wälti, co-president of Senior Women for Climate Protection, said, “I am shocked that the Federal Administrative Court failed to recognize the special health concerns older Swiss women face as a population highly vulnerable to climate change. The decision completely failed to consider the heightened health risks senior women face in a warming world [2]. As older women are hospitalized and even dying due to climate-induced heat waves, we demand a proper legal examination of the current and ongoing violations of our rights to life and health.”

 Georg Klingler, climate expert from Greenpeace Switzerland, has supported the Swiss seniors’ case from the beginning. He added, “The Paris Agreement explicitly affirms the importance of human rights in climate protection. If the Federal Administrative Court’s decision stands uncontested, the Swiss government would be free to ignore human rights in its climate actions. As the UN High Commissioner for Human Rights Michelle Bachelet recently explained, climate change is already affecting people’s lives and the enjoyment of human rights, particularly for vulnerable communities. Governments have an obligation to to step up their commitments to action in order to avoid the worst impacts of climate change [3].”

The link between climate change and human rights also weighs heavily in the recent Urgenda vs. The Netherlands decision, in which a Dutch court defined minimal obligations of the state to act on climate change and protect human rights [4].
Notes:
[1] Link to decision (in German): https://klimaseniorinnen.ch/wp-content/uploads/2018/12/Scan_urteil-BvG_20180512.pdf
[2] The 2018 report of the Lancet Countdown on health and climate change: shaping the health of nations for centuries to come, published online on 28 November 2018 http://dx.doi.org/10.1016/S0140-6736(18)32594-7, see page 6.
For detailed information on the scientific and legal basis of the case, see C Bähr, U Brunner, K Casper, S Lustig, ‘KlimaSeniorinnen: lessons from the Swiss senior women’s case for future climate litigation’ (2018)  9 Journal of Human Rights and the Environment 194, available at: https://www.elgaronline.com/view/journals/jhre/9-2/jhre.2018.02.04.xml.
[3] UN High Commissioner for Human Rights Michelle Bachelet, Open Letter, 21 November 2018, available at: https://www.ohchr.org/Documents/Issues/ClimateChange/OpenLetterHC21Nov2018.pdf
[4] For more details about Urgenda v. The Netherlands, see: https://www.urgenda.nl/en/themas/climate-case/

History of the case:

See also article published in september 2018 in the Journal for Human Rights and the Environment: https://www.elgaronline.com/view/journals/jhre/9-2/jhre.2018.02.04.xml

In November 2016, Senior Women for Climate Protection filed a legal request with the Federal Department of the Environment, Transport, Energy and Communications (DETEC) and other federal authorities, calling for greater climate ambition in order to protect their fundamental rights to life and health. After the authorities rejected the request, the group filed an appeal with the Federal Administrative Court. The Federal Administrative Court has now rejected the appeal, using the flawed reasoning that everyone is impacted by climate change and thus the senior women do not have a right to have their case heard.

Contacts:
Kristin Casper, Litigation Counsel, Greenpeace International, +1 720 917-8498, kristin.casper@greenpeace.org

Rosmarie Wydler-Wälti, Co-president, Senior Women for Climate Protection, +41 79 567 67 73, rosmariewydler@sunrise.ch

Ursula Brunner, Legal Counsel, Senior Women for Climate Protection, +41 79 293 0282 / 43 377 66 88, brunner@ettlersuter.ch

Cordelia Bähr, Legal Counsel, Senior Women for Climate Protection, +41 78 801 70 34, baehr@ettwein.ch

Georg Klingler, Climate Expert, Greenpeace Switzerland, +41 79 785 07 38, gklingle@greenpeace.org

Feature image: Anna Grear

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A Critical Examination of the Environmental Jurisprudence of the Courts of India (J. M. Cha)

Authors

J. Mijin Cha

Keywords

Human Rights, Environmental Rights, Constitutional Law, India, Right to a Healthy Environment, Jurisprudence

Extract

Introduction
 
Since 1972, India has carefully crafted an extensive body of environmental jurisprudence. Through the work of the legislature, along with the judiciary, the importance of environmental protection is being considered in all aspects of the law. The judiciary in particular has been extremely active in developing this ideal. By declaring a fundamental right to a healthy environment and liberalizing locus standi requirements, the judiciary has become active and influential in this developing country.

However, in order to achieve the desired results, the judiciary often employs unconventional measures that go above and beyond traditionally accepted methods used by the courts. The result of this activism, however pure the intent may be, is a muddled body of case law that fails to set forth clearly articulated principles and ultimately results in disputes with other branches of government.

This article explores the development of environmental law in the Indian judiciary, focusing heavily on the extra-judicial measures employed by the courts. The first section addresses the evolution of environmental law in India and briefly summarizes current environmental legislation and constitutional provisions that provide environmental protection. It also addresses the concept of public interest litigation and the manner in which courts have expanded the doctrine of locus standi.

The second section discusses the reactions and responses of the courts to environmental litigation. This analysis is split into two distinct areas: procedural imbalances and substantive imbalances. The section on procedural imbalances analyzes the effect …

Citation

(2005) 10 Albany Law Environmental Outlook Journal 197

Paper

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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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Some Brief Observations on Fifteen Years of Environmental Rights Jurisprudence in South Africa (L.J. Kotze and A. Plessis)

Authors

Louis J. Kotzé & Anél du Plessis

Keywords

Human Rights, Environmental Rights, Constitutional Law, South Africa

Abstract

Introduction
South Africa has recently celebrated its fifteenth year of democracy. The country has achieved much during this period in terms of realizing and upholding the founding democratic values espoused in the opening sections of the Constitution of the Republic of South Africa, 1996 (Constitution); including, among others: human dignity, the achievement of equality, the advancement of human rights and freedoms, constitutional supremacy, and the rule of law. At the same time, the inclusion of an enforceable substantive environmental right in the Constitution has sparked unprecedented development of the domestic environmental law and governance framework.
[…]
In an effort to evaluate the role that the South African courts have played in the development of constitutional environmental rights jurisprudence during the past fifteen years, this contribution commences with an introductory overview of the structure and function of the courts, with specific reference to their general role in environmental governance. The discussion subsequently turns to South Africa’s constitutional environmental right (section 24 of the Constitution), and to a succinct review of a selection of judgments in which the courts have engaged with this provision.

Citation

(2010) 3 Journal Of Court Innovation 157

Paper

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From Environmental to Ecological Human Rights: A New Dynamic in International Law (P.E. Taylor)

Author

Prudence E. Taylor

Keywords

International Law, Environmental Law, Ethics, Ecological Rights

Excerpt

I. INTRODUCTION

One of the most interesting developments in international environmental law in recent years has been the attempt to create links between the ethics debate and law reform. These attempts began with the recognition that philosophical discussions concerning the relationship between humanity and nature, and the moral worth of nature, were not only relevant to understanding the limitations inherent within current law, they were also fundamental to creating new legal obligations. As a consequence the language of philosophers began to emerge in the context of legal discourse. Phrases such as the “intrinsic value” of nature, “respect for nature,” “responsibility for nature,” and “future generational equity” have often found a place in dialogue and writings concerning traditional and new environmental legal obligations. At the municipal level this trend can be traced back to the late 1970s, while developments at the international level occurred more slowly. Nevertheless, by 1991 one of the first texts on international environmental law acknowledged that “ethical and philosophical concepts are crucial in understanding the actual nature of environmental law and the challenge it poses to international law.” 1

The task of this article is to consider a link between environmental ethics and human rights law in the form of “ecological rights.” The phrase “ecological rights” is used here to describe human rights which are subject to certain limitations. These limitations recognize that individual freedoms are exercised in an ecological context, in addition to a social context. In comparison, “environmental rights” …

Citation

(1998) 10 Georgetown Environmental Law Review 309

Paper

From Environmental to Ecological Human Rights: A New Dynamic in International Law

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