climate change, human rights, international human rights, jurisdiction, current and future generations, treaty law, customary international law, SU national courts, Alien Tort Statute
Much has been written about the growing impact of Global Climate Change on human rights as diverse as life, health, property and culture. 2 This article addresses the broad question of the extent to which international human rights norms may be asserted to protect current and future generations from the effects of global climate change. Part II of the article will consider potentially applicable norms in both treaty law and customary international law. Part III will explore the procedures for asserting these rights in the United States’ national courts and the substantive and procedural hurdles for doing so. The principal focus of this exploration will be claims in federal court under the Alien Tort Statute (“ATS”) 3 and under the general federal question statutory grant. 4 The possibility of raising these international human rights norms in state courts will also be considered. Finally, Part IV will discuss raising such claims in a regional or international forum, in particular the Inter-American Commission on Human Rights (“IACHR”), addressing again the substantive and procedural hurdles for doing so.
The article concludes that while such claims may not be entirely foreclosed, they are unlikely to succeed until the international norms are clearer and more universally accepted. Standing and other justiciability issues will prove difficult to overcome in some of these cases; however, the main obstacles to overcome will be subject matter jurisdiction, the related issue of failure to state a claim upon which relief may be granted in national courts, …
(2010) 21 Colorado Journal of International Environmental Law and Policy 49
Applying Human Rights Norms to Climate Change: The Elusive Remedy
Linda A. Malone
environmental degradation, human rights violation, international human rights, United Nations, environmental human rights, jurisdiction, international law
Whenever environmental degradation results in a human harm that violates accepted human rights norms, an international, regional or domestic human rights committee, commission, and/or court may provide a remedy that can contribute effectively to rectifying the underlying environmental
degradation as well as the human rights violation. This Article chronicles in the United Nations (“UN”) system the array of environmental human rights claims, how to determine and establish jurisdiction in the proper forum, the functions of varying fora where such claims may be filed, and newly emerging rights that have been recognized and legitimized in international law through this process.
(2002) 27 William & Mary Environmental Law and Policy Review 365.
Exercising Environmental Human Rights and Remedies in the United Nations System
international law, jurisdiction, subsidiarity, global values
Domestic courts and regulators, as well as international legal instruments and international supervisory mechanisms allow bystander States to exercise extraterritorial jurisdiction to protect global values and norms related to human rights and the environment. Such exercise appears to be conditioned, however, by a requirement of subsidiarity, pursuant to which bystander States should only exercise extraterritorial ‘global justice’-based jurisdiction where the primary jurisdiction State – the State where the impugned acts occurred or where the allegedly responsible person is registered – is unable or unwilling to intervene. Such techniques have essentially been developed to limit jurisdictional overreach and to prevent one State from imposing its own regulatory solutions on another State. Seen from this perspective, they embody the negative, sovereignty-based dimension of subsidiarity, rooted in the sovereign equality of States.
Nevertheless, other techniques, embody a more positive, international community-driven dimension of subsidiarity, to be used with a view to upholding the integrity of international norms regarding human rights and the environment.
Ryngaert, C. (2014) Subsidiarity and the Law of Jurisdiction, working papers series, Utrecht University School of Law
Subsidiarity and the Law of Jurisdiction