Tag Archives: civil and political rights

The Power of Rights: Imposing Human Rights Duties on Transnational Corporations for Environmental Harms (A. Sinden)

Author

Amy Sinden

Keywords

Human Rights, Environmental Wrongs, Transnational Corporations, Civil and Political Rights, Public/Private Divide

Abstract

This essay attempts to construct a normative justification for the imposition of human rights duties on transnational corporations (TNCs) that commit environmental wrongs in the developing world. Under the now near-hegemonic worldview of welfare economics, TNCs are analogised to individuals competing in the marketplace and thus placed squarely on the private side of the public/private divide. If we step outside of the economic worldview, however, and recognise the extent to which the normative justifications for civil and political human rights have traditionally been rooted in a perceived need to counteract the imbalance of power between the individual and the state, it becomes clear that it is frequently far more appropriate to treat TNCs as like states than like individuals. Many TNCs, after all, wield more power and resources than many states. Accordingly, at least where one of two sets of factual circumstances exist, human rights duties should be imposed directly on TNCs for environmental harms: 1) where the state has become so weak and/or corrupt as to be non-functional, or 2) where the TNC has so much power and influence within the domestic government that it essentially controls state decision-making.

Citation

(2007) in The New Corporate Accountability, D. McBarnet et al. (Eds.)

Paper

The Power of Rights: Imposing Human Rights Duties on Transnational Corporations for Environmental Harms

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An Emerging Human Right to Security from Climate Change: The Case Against Gas Flaring in Nigeria (A. Sinden)

Author

Amy Sinden

Keywords

Climate Change, Environmental Degradation, Human Rights, Civil and Political Rights, Corporations

Abstract

Most of the oil wells in Nigeria are accompanied by a raging flame that burns twenty-four hours a day, reaching hundreds of feet into the sky, killing the surrounding vegetation with searing heat, emitting a deafening roar, and belching a cocktail of smoke, soot, and toxic chemicals into the air along with a potent mixture of greenhouse gases. In 2005, the Federal High Court of Nigeria ruled that the widespread practice of gas flaring by Shell and other oil companies in the Niger Delta constituted a human rights violation. This may be the first court ruling anywhere in the world to suggest that there is a human right to security from climate change. Such a right is warranted. It actually fits comfortably within the principles and values that underlie some of the oldest and most venerated rights in the civil and political rights tradition. Even though that tradition was born over two hundred years ago, long before anyone could have conceived of the idea of climate change, this problem – at least in its political aspects – is exactly the kind of problem that civil and political rights are aimed at combating. It is a problem that arises fundamentally from the distortion of government decision making by power. Nor does the fact that the actions complained of here were committed by private actors take this case outside the rubric of human rights. Even under traditional doctrine, the close relationship between Shell and the Nigerian government in this case may well warrant a finding of liability against Shell for acting in concert with the State. But even in cases where no joint venture with the government can be proved, it may be appropriate to hold the multi-national corporation liable. The same concerns that animated the conceptualization of civil and political rights in the eighteenth century as rights against the State, warrant the imposition of such rights directly against multinational corporations in the twenty-first century, when such corporations wield more wealth than many countries and the power of multinationals to affect the conditions of daily existence for individuals often rivals that of government.

Citation

(2008) in Adjudicating Climate Change: State, National, and International Approaches, W.C. Burns and H.M Osofsky (Eds)

Paper

An Emerging Human Right to Security from Climate Change: The Case Against Gas Flaring in Nigeria

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Climate Change and Human Rights Law (J.H. Knox)

Author

John H. Knox

Keywords

Human Rights Law, Environmental Protection, Civil and Political Rights, Economic, Social and Cultural Rights, Regulate State and Private Conduct, Jurisprudence, Climate Change

Abstract

This Essay divides the overarching issue—what duties, if any, human rights law imposes with respect to climate change—into three questions. First, what duties has human rights law established with respect to environmental degradation generally? As Part I explains, although only two regional treaties explicitly recognize rights to a healthy or satisfactory environment, human rights bodies have developed an extensive environmental jurisprudence based on already recognized human rights, such as rights to life, health, and property. This jurisprudence takes a two-pronged approach. First, it sets out strict procedural duties, including prior assessment of environmental impacts, access to participation in decision-making, and judicial remedies, which states must follow in deciding how to strike the balance between environmental protection and other societal interests, such as economic development. Second, it defers to the substantive decisions that result from these procedures, as long as the decisions do not result in the reduction of human rights below minimum standards.

The second question, addressed in Part II, asks: how well does this jurisprudence apply to climate change? Although climate change undoubtedly interferes with human rights, any attempt to bring the law of environmental human rights to bear on it faces a formidable obstacle: the jurisprudence construing that law was developed in the context of harm that does not cross an international boundary. In that context, deference to a state’s decision as to how much environmental harm to allow is justifiable because the benefits and the costs of the actions causing the harm are felt within a single polity. If that polity follows procedural safeguards to ensure that all those affected are able to participate fully in the decision-making process, then the resulting decision is entitled to a presumption of legitimacy. But those safeguards do not translate easily to environmental harms such as climate change, which are caused by and affect many different countries. Nevertheless, even in the absence of clear extraterritorial application, human rights law still imposes duties on states to address the internal effects of climate change and constrains their possible responses to it.

The third question, addressed in Part III, asks whether current environmental human rights jurisprudence may extend to address the global threat climate change poses to human rights. Of the potential legal bases for such an extension, this Essay concludes that the best is the duty to cooperate, which requires states to take joint action to promote and protect human rights. This duty requires states to create the equivalent of a single global polity to consider how to respond to the global threat to human rights posed by climate change. The duty to cooperate thus provides a workable basis for the application of the two-pronged environmental human rights jurisprudence to climate change. As long as the international community acts together to adopt decision-making procedures that assess the threat and provide informed access to affected communities, the resulting decisions should receive deference. This deference should not be absolute: even climate agreements that meet these procedural requirements must also satisfy minimum substantive standards for human rights protection.

Citation

(2009) 50 Virginia Journal of International Law 163

Paper

Climate Change and Human Rights Law

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