User:Kaihsu/EnvB5

International environmental law.

Module B: General aspects of international environmental law II.

Chapter 5: Human rights and the environment.

UN, regional, national instruments
States must respect, protect, (promote,) and fulfil the rights. But there may be conflicts, balances, tradeoffs between rights – not point out in UN High Commissioner for Human Rights analytical study (2011).

United Nations
Recall Stockholm 1/Rio 1. Usually any provision for environmental right is vague, and link from other human rights to the environment is not explicit.
 * 1948 Universal Declaration of Human Rights
 * 1966 Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESCR) (art. 12(2)(b) env. and industrial hygiene).

UN Human Rights Council and High Commissioner have a Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes (special rapporteur on toxics). Since 2012 there is a Special Rapporteur on human rights and the environment.

General Comment 15 of the UN Committee on Economic, Social and Cultural Rights (under ECOSOC) affirmed the existence of the right to water &rarr; Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki Convention).

In August 2019, the UN Human Rights Committee found Paraguay responsible for human rights violations in context of massive agrochemical fumigations.

Regional
These regional human rights treaties: Only Art. 24 African Charter, Art. 11 San Salvador Protocol to the American Convention, and art. 38 Arab Charter contain an explicit right to a satisfactory/healthy environment. San Salvador Protocol distinguishes the right of an individual to ‘live in a healthy environment’ from the positive obligation of states to protect, preserve, and improve the environment.
 * 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
 * 1961 European Social Charter (ESC; revised 1996): art. 11 (health)
 * 1969 American Convention on Human Rights (1969 ACHR, “Pact of San José”)
 * 1981 African Charter on Human and Peoples’ Rights (1981 African Charter).
 * 2004 Arab Charter on Human Rights

UNECE Aarhus Convention (1998) implements Rio 10 by providing for extensive procedural human rights: information – public participation – environmental justice &rarr; 2003 Kyiv Protocol on Pollutant Release and Transfer Registers (in force since 8 October 2009). Implemented in EU law. See User:Kaihsu/EnvA4. This further develops from Art. 9 1992 OSPAR Convention, which provides for access to info &rarr; MOX arbitration.

2012 ASEAN Human Rights Declaration provides in Article 28 the right of “every person ... to an adequate standard of living ... including ... (e) The right to a safe, clean and sustainable environment”.

In Latin America and the Caribbean, there is the 2018 Escazú Agreement on Access to Information, Public Participation and Justice in Environmental Matters.

National
Like over 100 constitutions, section 24 of 1997 South Africa Constitution provides for environmental rights. Finnish constitution: ‘20 § (Vastuu ympäristöstä) Vastuu luonnosta ja sen monimuotoisuudesta, ympäristöstä ja kulttuuriperinnöstä kuuluu kaikille. ¶ Julkisen vallan on pyrittävä turvaamaan jokaiselle oikeus terveelliseen ympäristöön sekä mahdollisuus vaikuttaa elinympäristöään koskevaan päätöksentekoon.’

African Commission on Human Rights
The Commission in 155/96 Ogoni (2001) decided that Nigerian National Petroleum Company with Shell violated inter alia rights to life (Article 4 of African Charter), to health (Article 16), to property (Article 14), of peoples to ‘dispose of their wealth and natural resources’ (Art. 21) and to ‘a general satisfactory environment favourable to their development’ (Article 24), leading to environmental degradations, health problems, toxicity of water, destruction of villages.

Later in Endorois and Ogiek, the Commission found that Kenya violated Charter rights by establishing protected areas on traditional tribal land and evicting people.

Inter-American Court of Human Rights
The Commission dealt with indigenous rights earlier. The Court held in Awas Tingni v Nicaragua (2001) that Article 21 (property right) of the American Convention was breached by granting logging permission in a forest on traditional indigenous land.

In the Advisory Opinion OC-23/17 (2018-02-07, requested by Colombia re Nicaragua’s planned Chinese-funded trans-isthmus canal etc.), the Court held: The Court cited ECtHR, African Commission on Rights, UN committee, etc. Compare with inadmissible diagonal claim in Banković ECtHR.
 * In addition to the self-standing (Art. 11 San Salvador Protocol; both individual and collective) human right to a healthy env., protection of the environment is critical to the enjoyment of other human rights.
 * Extraterritoriality is exceptional, but personal jurisdiction [and claim?] in environmental cases may be justified if causal link exist; in any case, states have the obligation to avoid transboundary environmental harms that could affect the human rights of persons outside their territory [e.g. climate change].
 * There is both a negative obligation to respect human rights by abstaining from illegal pollution, and positive obligations arise when there is a causal link between a violation and environmental damage.
 * State env.-protection obligation to apply precautionary principle, to prevent transboundary environmental damage, to cooperate, Aarhus-like procedural obligations – Escazú?

Colombian Supreme Court case
In judgment STC4360-2018 (2018-04-05) on climate change effects from Amazon deforestation, the court found the Colombian authorities violated their obligations under Article 12 International Covenant on Economic, Social and Cultural Rights, Paris Agreement etc. The Amazon region is a subject of rights, as the Constitutional Court had found for Atrato river in judgment T-622 (2016) para 9.27ff.

European Court of Human Rights
No env. human right in ECHR catalogue (Fadeyeva v Russia 2005), but claims have been successful using Articles 8 (private, family life; most often), 13 (effective remedy), 2 (life), 3 (inhuman or degrading treatment), 10 (expression), Protocol 1 art. 1 (property).


 * 1) The state has a positive obligation to control pollution: López Ostra, Guerra, Cordella, Öneryıldız, Budayeva.
 * 2) Pollution must attain a minimum level (de minimis) to fall within Art. 8 scope: Fadeyeva.
 * 3) The state must take measures to control third-party pollution and prevent natural hazards; in this it has a wide margin of appreciation: López Ostra, Hatton, Flamenbaum, Ciechońska, Smaltini, Taskin.
 * 4) The state must consider precationary principle and ensure procedural rights: Tătar, Dubetska, Cordella, Özel.

Article 8 (private and family life)
The state has a positive duty beyond mere statutory functions to protect the applicant from nuisance to private and family life, to be balanced against local economic benefit (Art. 8): 16798/90 López Ostra (waste plant) ECtHR 1994.

The Grand Chamber (2003) quashed the Third Section’s ruling (2001) for the applicant in Hatton a.o. v UK (Heathrow noise), holding that the state has wide margin of appreciation if the applicant’s interest has been considered in the balancing. Confirmed in Flamenbaum a.o. v France (judgment 2013-03-13; also no breach Protocol 1 art. 1). Adverse effect must be non-negligible and directly affecting the applicant’s home, family, private life (Art. 8): Fadeyeva.

The mining company Aurul SA had violated the precautionary principle and the environmental impact assessment (Art. 8; UNECE Aarhus Convention): Tătar v Romania (gold mining with cyanide; 2009). Individuals affected must be able to participate in the decision-making; onus is on the state to justify where certain individuals bear a heavy burden on behalf of the rest of the community: Dubetska a.o. v Ukraine (judgment 2011-02-10).

Toxic emissions from steelworks violated Article 8; lack of domestic remedy violated Article 13 (right to an effective remedy): Cordella a.o. v Italy 2019-01-24 (Ilva steelworks in Taranto).

No actio popularis: Kyrtatos.

Article 2 (right to life)
Beyond the negative obligation of non-interference, the state has a positive obligation to protect individuals at risk (Art. 2): Öneryıldız v Turkey (2002, 2004; waste landslide on slum). Confirmed in Budayeva a.o. v Russia (2008): state must take measures to ensure rights – overlapping with Art. 8 when hazardous activities are concerned; but in this, it has wide margin of appreciation; likewise Ciechońska v Poland (judgment 2011-06-14; sanatorium fallen tree), Smaltini v Italy (found inadmissible 2015-03-24; steelworks leukemia).

By not acting promptly in determining the responsibilities of building collapse causing deaths in the Çınarcık earthquake, the state violated Art. 2: Özel a.o. v Turkey (judgment 2015-11-17).