Tag Archives: protection

Human Rights and Global Climate Change (S. Caney)

Author(s)

Simon Caney

Keywords

human rights, fossil fuels, injustice, cosmopolitanism,  climate change, risk, uncertainty, protection, morality, time, temporal

Abstract

Is it possible and desirable to translate the basic principles underlying cosmopolitanism as a moral standard into effective global institutions. Will the ideals of inclusiveness and equal moral concern for all survive the marriage between cosmopolitanism and institutional power? What are the effects of such bureaucratisation of cosmopolitan ideals? This volume examines the strained relationship between cosmopolitanism as a moral standard and the legal institutions in which cosmopolitan norms and principles are to be implemented. Five areas of global concern are analysed: environmental protection, economic regulation, peace and security, the fight against international crimes and migration.

In this paper, the author argues that climate change jeopardizes a number of fundamental human rights.

Citation

Simon Caney, ‘Human Rights and Global Climate Change’ in: Ronald Pierik and Wouter Werner eds., Cosmopolitanism in Context: Perspectives from International Law and Political Theory (Cambridge University Press, 2010)

Paper

‘Human Rights and Global Climate Change’ in Cosmopolitanism in Context: Perspectives from International Law and Political Theory

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Stemming the Flow of Environmental Displacement: Creating a Convention…(D. Z. Falstrom)

Author

Dana Zartner Falstrom

Keywords

Displaced individuals, environmental reasons, environmental refugees, root causes, affirmative State obligations, protection

Abstract

While the number of people who have been displaced for environmental reasons is on the rise, it is a mistake to believe that the existing refugee structure and current refugee norms are adequate to protect these individuals. In this paper, I address the root causes of environmental degradation and catastrophe that are causing this increased migration of environmentally displaced persons. I also provide justification for my position that a new convention should be drafted providing protections for environmentally displaced persons and creating affirmative obligations for states to work toward preventing environmental displacement in the future.

Part II defines “ environmental refugees ” and describes how they have come to exist and where they come from. Several examples from recent years illustrate that environmental factors are often only one piece of a more complex puzzle. In Part III , I consider a representative commentator who argues that environmental refugees can be amply protected under existing refugee mechanisms—a position which fails to consider the definition of “ refugee ” in the international context. Even if these refugees could meet the academic criteria laid out in the definition of the Refugee Convention of 1951, individual states have implemented the provisions of the Convention in different ways—often, as in the case of the United States, in such a way that would make it practically impossible for an environmentally displaced person to be admitted to the state as a refugee . Accordingly, we must create a new mechanism for protecting environmentally displaced persons, addressing both the displacement and the environmental factors precipitating the displacement. Merely allowing environmentally displaced individuals to move does not solve the problem. Not only is their homeland continually decimated, but also the massive influx of environmental refugees to other areas creates a vicious cycle of environmental problems in these new areas.

Part IV outlines my suggested alternative to the proposal that environmentally displaced persons should be considered under the existing refugee structure. The solution for this problem must address not only the root of the problem ( environmental issues), but also the results ( environmental refugees ). Utilization of the Refugee Convention, while addressing the results, does not touch the root of the problem. I, therefore, propose that the international community address the problem of environmentally displaced persons in a manner similar to that of victims of torture. As with the Convention Against Torture, I suggest that states offer temporary protection to those fleeing from environmental problems, and also assume obligations and duties in order to solve these problems within their own jurisdictions, thus preventing the creation of environmental refugees from the start. Sufficient evidence of support for a new convention governing environmentally displaced persons already exists in international treaty law and customary international law, and can provide the necessary sense of state obligation for a new treaty to succeed.

Citation

(2001) Colorado Journal of International Environmental Law and Policy 2

Paper

Stemming the Flow of Environmental Displacement: Creating a Convention to Protect Persons and Preserve the Environment

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Locus standi in environmental torts and the potential influence of human rights… (M. Wilde)

Author

Mark Wilde

Keywords

Environmental tort; standing (locus standi); environmental justice; private nuisance; convergence of human rights and tort; human rights and environmental justice; European Court of Human Rights jurisprudence; statute and standing.

Abstract (introduction)

The debate regarding the role of civil liability as a means of environmental protection has been running for many years and shows no signs of running its course, as certain States press ahead with environmental liability regimes and the European Community continually shifts position. One of the central themes that has yet to be fully resolved concerns which parties should be in a position to take action in respect of environmental harm. Existing private-law mechanisms focus on individual loss, be it in the form of personal injuries or damage to property. This immediately limits the class of persons who may claim and focuses attention on the individual loss rather than the wider environmental harm. For example, members of the family home, other than the person enjoying title to the property, may be excluded from the protection afforded by the property torts, such as private and public nuisance, and trespass to land due to their lack of title. This theme links into a broader debate in that, beyond the family home, there is clearly limited capacity for individuals, or other interested parties, to seek remedies in respect of damage to the wider environment.

This issue is discussed within a wider European Union (EU) context, namely the long-running debate regarding the necessity for a European civil liability regime for environmental damage. These proposals culminated in a White Paper setting out a regime designed to overcome many of the drawbacks associated with the use of tort in this context. This included a proposal to afford standing to non-government organizations (NGOs) to seek a remedy where there was no private party able or willing to act. The issue of standing is crucial in this debate in that the effect of a regime would be limited if access to remedies was limited to traditional categories of claimant. In the USA, for example, the courts have been prepared to adopt a more liberal view of standing within the context of environmental legislation. However, as will be seen, in subsequent proposals, the EU appears to have backtracked on this original idea. The reasons for this uncertain state of affairs will be addressed below.

Furthermore, as might be expected, human rights jurisprudence is likely to have a major effect on the standing debate, as any restriction that appears to restrict access to justice could fall foul of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (ECHR) on the right to an effective judicial remedy.

Citation

(2003) 12(3) Review of European Community and International Law, 284-294.

Paper

Locus standi in environmental torts & the potential influence of human rights jurisprudence.

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The Human Dimension of International Law: selected papers (Antonio Cassese).

Author

Antonio Cassese (edited by Paola Gaetaand Salvatore Zappalà).

Keywords

International law, human rights, environmental protection, criminal injustice.

Abstract

This is a selection of papers. Christian Tomuschat and Francesco Francioni discuss the relevance of the international law of human rights to two other branches of public international law: international humanitarian law and international environmental law, respectively. Tomuschat raises crucial questions as regards the contemporary application of international humanitarian law and human rights law in armed conflicts. Francioni challenges the view that human rights and the existing mechanisms for their international protection constitute the most appropriate means to counter the increasing degradation of the environment. Written over a period of 25 years, from 1974 to 2001, the papers chart the development of Cassese’s thought on the central issues that have shaped his life’s work: the laws relating to armed conflict, respect of individual rights and the prosecution of individuals for international crimes. Emerging from the papers is Cassese’s vision of the individual and human dignity as the lynchpin of the international legal system, and the need to balance the fact of statehood as an essential feature of modern international society with the protection of individual rights.

Citation

Cassese A., The Human Dimension of International Law: Selected Papers (1st edn, Oxford University Press 2008)

Paper

The Human Dimension of International Law: selected papers.

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Judicial Protection of the Right to a Clean & Healthy Environment in Uganda (B.K. Twinomugisha)

Author

Ben Kiromba Twinomugisha

Keywords

Accountability, environment, healthy, judicial protection, private actors, rights, state, Uganda.

Abstract

In Uganda there has been significant progress in the field of environmental protection through various legal and policy strategies. The Constitution of Uganda and the National Environment Act contain novel provisions, including the right to a clean and healthy environment. The judiciary in Uganda has decided a number of cases concerning violations of this right. Against this background, this article reflects on the extent to which the judiciary has protected the right. The article finds that through a creative application of the right, the judiciary has to some extent held the state, its agencies and private actors accountable. The article concludes that there are still challenges facing judicial protection of the right. For an enhanced judicial protection of the right, the article recommends a more expanded application of relevant constitutional provisions. Environmental and human rights activists should not only educate the public on the right to a clean and healthy environment and its enforcement but also adduce necessary scientific and technical evidence in court.

Citation

(2007) 3(3) Law, Environment and Development Journal 244

Paper

Some Reflections on Judicial Protection of the Right to a Clean and Healthy Environment in Uganda

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