Category Archives: Jurisprudence

The Environmental Jurisprudence of the European Court of Human Rights, 2003-2004 (D. Shelton)

Author

Dinah Shelton

Keywords

Human Rights, Environmental Jurisprudence, European Court of Human Rights

Abstract

None available

Citation

in (2004) 1 Global Community: The Year Book of International Law and Jurisprudence  293,  (Oceana: Dobbs Ferry, NY)

Paper

The Environmental Jurisprudence of the European Court of Human Rights, 2003-2004

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A Right to Environment in International Law: Current Status and Future Outlook (P. Pevato)

Author(s)

Paula M.Pevato

Keywords

Right to Environment, International Law, Public Policy, Human Rights, Policy Science

Excerpt

In adhering to the spirit of this special issue of RECIEL that aims to ‘look back and look ahead’, this article is both reflective and somewhat prescient, given that it will touch upon recent history, present status and future prospects of one such concept that has emerged para, or alongside, the progressive development of inter-
national law for the protection of the environment: the right to environment. The leitmotif of this article is rather straightforward: what is a right to environment in contemporary international law and policy and what is the forecast for future recognition as a human right? Given that many arguments cannot be developed fully within the scope of this article, its aim is modest: to reevaluate prevailing attitudes, both convergent and divergent tides of thought; to situate the status of this concept within current international legal theory and practice; and, to raise relevant questions for further reflection.

Citation

(1999) 8 Review of European Community and International Environmental Law 309-321

Paper

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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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Taking aims seriously – how legal ecology affects judicial decision-making (Pallonitty)

Author

Tiina Pallonitty

Keywords

Methodology of environmental law, judicial decision-making, water management, legal theory, principles, rights, rules

Abstract

This article reflects upon key challenges that ecology as a field of science has brought to modern environmental law as it operates within civil law systems. An example from European water management regulation elucidates how the traditional perception of judicial decision-making as deductive reasoning does not match the current reality because factual and normative premises are no longer as distinct as presumed. A novel way of formulating judicial decisions is accordingly presented: legal ecology – which aims to provide one answer to the search for more mature environmental methodologies. Legal ecology is based on the writings of the late Ronald Dworkin and especially of Robert Alexy, whose concept of principles as optimization requirements is adapted to fulfill the execution of the aim-setting sections frequently used in environmental regulation. Adjudication with legal ecology is understood to be rooted in normative sources but to be more transparent, open to scrutiny and to invite more evolved argumentative development than is currently the practice in civil law environmental adjudication. As such, the suggested approach might also benefit argumentation in the sphere of human rights and the environment in general – or any other field where aims ought to be balanced or value choice made visibile without compromising the requirements of legal certainty.

Citation

(2015) 1 Journal of Human Rights and the Environment 55-74

Publication

Taking aims seriously – how legal ecology affects judicial decision-making

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