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Reconstructing Environmental Right in the Age of Climate Change. Yao-Ming Hsu Associate Professor, College of Law National Cheng-Chi University, Taiwan July 4 th , 2014 12th IUCNAEL Colloquium 2014. Outline. Introduction I. Emergence of Environmental Rights ( ER )

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Reconstructing environmental right in the age of climate change

Reconstructing Environmental Right in the Age of Climate Change

Yao-Ming Hsu

Associate Professor, College of Law

National Cheng-Chi University, Taiwan

July 4th, 2014

12th IUCNAEL Colloquium 2014


Reconstructing environmental right in the age of climate change

Yao-Ming Hsu


Outline

Outline

Introduction

I. Emergence of Environmental Rights (ER)

A. Environmental Impacts and Formulation of ER

B. Codifications of ER in multi-governance levels

II. Reformulation of Environmental Rights

A. New Impacts from Climate Change

B. Responses for creating New ER

Conclusion

Yao-Ming Hsu


Introduction

Introduction

Nature of ER

Needs for New ER

Yao-Ming Hsu


Introduction 1 nature of er

Introduction 1 Nature of ER

  • International Human Rights Movement after WW II

  • International Human Rights Instruments

  • International Environmental Concerns since the 70’s in last century

  • National, supranational and international codifications of ER

  • Nature of ER? Individual right? Group right?

  • Remedies for infringements of ER?

Yao-Ming Hsu


Categories of er status quo

Categories of ER/ status quo

Yao-Ming Hsu


1 right to life

1. Right to Life

  • Art.3 of Universal Declaration of Human Rights: “Everyone has the right to life, liberty and security of person”.

  • Negative effects-states should prevent interferences.

  • Positive effects—states’ protection obligations

Yao-Ming Hsu


1 right to life1

1. Right to Life

  • Art.6.1 of International Convenant on Civil and PoliticalRights :”Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”.

  • General Comment No. 6, the UN Human Rights Committee-- The expression “inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that states adopt positive measures.(item 5, UN Doc/A/37/40, 30 April 1982)

Yao-Ming Hsu


1 right to life2

1. Right to Life

  • 1972 Stockholm Declaration

    Principle 1-- Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.

  • 1992 Rio Declaration

    Principle 1--Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.

Yao-Ming Hsu


2 right to health

2. Right to Health

  • International Covenant on Economic, Social and Cultural Rights, art. 12.1—”The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”

  • The Committee on Economic, Social and Cultural Rights, General Comment No. 14, The right to the highest attainable standard of health, Un. Doc. E/C.12/2000/4 11 August 2000, paras. 1 and 3, 59-- the substantive content of this right includes timely and appropriate health care, access to safe and potable water, adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information.

    --that victims of violations of the right to health should have access to remedies at both national and international levels and should be entitled to adequate reparation.

Yao-Ming Hsu


2 right to health1

2. Right to Health

1989 the United Nations Convention on the Rights of the Child

Art.24.1:

“States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.”

Art.24.2.(c):

  “To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution.”

Yao-Ming Hsu


2 right to health2

2. Right to Health

  • 1992 UNFCCC

    Art.1(1)

    “Adverse effects of climate change” means changes in the physical environment or biota

    resulting from climate change which have significant deleterious effects on the composition, resilience or productivity of natural and managed ecosystems or on the operation of socio-economic systems or on human health and welfare.

Yao-Ming Hsu


3 nature of er

3. Nature of ER?

Yao-Ming Hsu


4 remedies for infringements of er

4. Remedies for infringements of ER?

  • Ubiius, ibiremedium.

  • Rio Declaration, principle 10: “Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

  • Aarhus Convention, art.9.1

    “Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.” ---just remedy for right to information

  • Substantial remedies for environmental rights?

Yao-Ming Hsu


Introduction 2 needs for new er

Introduction 2 Needs for New ER

IPCC 4th AR (2007)

  • Severity of droughts

  • Land degradation

  • Desertification

  • Intensity of floods, tropical cyclones

  • Incidence of malaria

  • Heat-related mortality

  • Decreasing crop yield & food security

Yao-Ming Hsu


Recent references

RecentReferences

  • TimoKoivurova, SébastienDuyck, LeenaHeinämäki, CLIMATE CHANGE AND HUMAN RIGHTS, 21 IUS Gentium 287 (2013)

  • Alan Boyle, Human Rights and the Environment: Where Next? 23(3) EJIL 613 (2012)

  • SiobhánMcInerney-Lankford, Mac Darrow, and LavanyaRajamani, Human Rights and ClimateChange: A Review of the International Legal Dimensions (Washington, DC: The World Bank Study, 2011)

  • Philippe Sands, Rethinking Environmental Rights- Climate Change, Conservation and the European Court of Justice, 20 Environmental Law & Management 117 (2008).

Yao-Ming Hsu


I emergence of environmental rights

I. Emergence of Environmental Rights

Formulation

Codification

Yao-Ming Hsu


I emergence of environmental rights er

I. Emergence of Environmental Rights (ER)

Yao-Ming Hsu


A environmental impacts and formulation of er

A. Environmental Impacts and Formulation of ER

  • 1972 Stockholm Declaration

  • 1992 Rio Declaration

  • 1992 UNFCCC

  • ….etc

Yao-Ming Hsu


Un human rights council

UN Human Rights Council

  • April 2011 Human Rights Council Resolution A/HRC/RES/16/2

  • In this resolution, the Human Rights Council decides “to extend the mandate of the current mandate holder as a special rapporteur on the human right to safe drinking water and sanitation for a period of three years” and “Encourages the Special Rapporteur, in fulfilling his or her mandate… to promote the full realization of the human right to safe drinking water and sanitation by, inter alia, continuing to give particular emphasis to practical solutions with regard to its implementation, in particular in the context of country missions, and following the criteria of availability, quality, physical accessibility, affordability and acceptability”.

Yao-Ming Hsu


2009 unhrc resolution

2009 UNHRC resolution

UN HumanRights Council, Resolution 10/4, 25 March 2009

  • “Noting that climate change-related impacts have a range of implications, both direct and indirect, for the effective enjoyment of human rights including, inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing, the right to self-determination and human rights obligations related to access to safe drinking water and sanitation, and recalling that in no case may a people be deprived of its own means of subsistence”.

Yao-Ming Hsu


B codifications of er in multi governance levels eu

B. Codifications of ER in multi-governance levels- EU

EU Lisbon Treaty / TEU/TFEU

TEU, art.3.3

The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment.

TFEU, art.191.1

  • Union policy on the environment shall contribute to pursuit of the following objectives:

    — preserving, protecting and improving the quality of the environment,

    — protecting human health,

    — prudent and rational utilisation of natural resources,

    — promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change. (newly added)

Yao-Ming Hsu


Reconstructing environmental right in the age of climate change

ECHR

  • ECHR

    Art.2.1: “Everyone’s right to life shall be protected by law”.

    Art.8.1: “Everyone has the right to respect for his private and family life, his home and his correspondence”—environmental interferences causing health-related problems

Yao-Ming Hsu


Jurisprudences of ecthr ecj

Jurisprudences of ECtHR/ ECJ

ECtHR--Many Cases for the past 25 yrs ago.

  • Insufficiency

  • Reasons:

    1. just for negative impacts on an individual’s rights

    2. procedurally, there’s no public interest proceedings.

    ECJ--Ex. Greenpeace v. European Commission (case c-321/95 P, objecting new coal-fired power plants): applicants should show how they are “individually and directly concerned” by the measure.

Yao-Ming Hsu


Aarhus convention

Aarhus Convention

  • 1998 Aarhus Convention Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters

  • 1.Human right of access to justice

  • 2. confers rights on individuals

  • 3.essential elements have been incorporated to ECHR jurisprudences.

Yao-Ming Hsu


Ii reformulation of environmental rights for climate change

II. Reformulation of Environmental Rights for Climate Change

New Impacts

Responses

Yao-Ming Hsu


Ii reformulation of environmental rights for climate change1

II. Reformulation of Environmental Rights for Climate Change

  • Procedural Rights:

    proceduralization of environmental right

    1998 Aarhus Convention

    Public participation, right to information & Right to Judicial Remedies: already guaranteed.

  • Substantial Rights:

    Right to life?

    Right to Health?

    Other Possibilities?

    --Environmental Right per se?

    --a right to a decent environment?

Yao-Ming Hsu


A new impacts from climate change

A. New Impacts from Climate Change

  • IPCC AR

  • 2005 Inuit Petition

  • 2009 UN/OHCHR Report

Yao-Ming Hsu


2005 inuit petition

2005 Inuit Petition

  • Claims:

  • the impact of climatechange caused by acts and omissions of the United States, violates the Inuit's fundamental human rights

    ,such as the rights to the benefits of culture, to property, to the preservation of health, life, physical integrity, security and a means of subsistence, and to residence, movement, and inviolability of the home.

Yao-Ming Hsu


Inuit petition results

Inuit Petition: Results

  • The Inter-American Commission on Human Rights has clearly recognized that environmental interference with indigenous peoples' lands may lead to the infringement of their human rights

  •  On November 16, 2006, the Commission rejected the Inuit petition, stating that “the information provided does not enable us to determine whether the alleged facts would tend to characterize a violation of rights protected by the American Declaration.”

Yao-Ming Hsu


2009 un ohchr resolution

2009 UN/OHCHR Resolution

  • A number of observed and projected effects of climate change will pose direct and indirect threats to human lives. IPCC ... projects with high confidence an increase in people suffering from death, disease and injury from heat waves, floods, storms, fires and droughts. Equally, climate change will affect the right to life through an increase in hunger and malnutrition and related disorders impacting on child growth and development, cardio-respiratory morbidity and mortality related to ground-level ozone. Climate change will exacerbate weather-related disasters which already have devastating effects on people and their enjoyment of the right to life, particularly in the developing world. For example, an estimated 262 million people were affected by climate disasters annually from 2000 to 2004, of whom over 98 per cent live in developing countries.

    (United Nations Human Rights Council (HRC) Resolution 10/4, Human Rights and Climate Change, UN Doc. A/HRC/10/L.11, 12 May 2009)

Yao-Ming Hsu


2009 un ohchr report

2009 UN/OHCHR Report

  • UN HRC, Report of the OHCHR on the Relationship Between ClimateChange and Human Rights, UN Doc. A/HRC/10/61, 15 Jan. 2009

    Para.70--While climate change has obvious implications for the enjoyment of human rights, it is less obvious whether, and to what extent, such effects can be qualified as human rights violations in a strict legal sense

    Para.91-- human rights litigation is not well-suited to promote precautionary measures based on risk assessments, unless such risks pose an imminent threat to the human rights of specific individuals.

Yao-Ming Hsu


B responses for creating new er

B. Responses for creating New ER

  • Skepticism for creating new rights

  • Advocacy (Alan Boyle, 2012)

    1.environment as a public good

    2.with the context of economic, social and cultural rights through the right to water, food and environmental hygiene.

    ---Derived from sustainable development for reconciling the economic development and environmental protection?

Yao-Ming Hsu


B responses for creating new er1

B. Responses for creating New ER

  • Legal standings? (Christopher Stone, 1972; Philippe Sands, 2008)

  • Actionable?

  • Collective rights/ citizens’ suits

    --Francesco Francioni (2010); collective-social dimension of HR

    ex. 2007 UN Declaration on the Rights of Indigenous People

Yao-Ming Hsu


Er as collective right

ER as collective right?

  • Traditional right to life, health, private and family life –still an approach for individual rights.

  • Recognition of collective dimension of rights

  • Ex. UN committee on ESC rights, general comment no.15, right to water.

  • EX. NAFTA Arbitration Glamis Gold v. US (2009), using the justification of conservation of life and culture of native tribes for denying the authorization of Canadian gold mining.

Yao-Ming Hsu


African charter on human and peoples rights

African Charter on Human and Peoples' Rights

  • Art.24—”All peoples shall have the right to a general satisfactory environment favorable to their development”.

  • Ogoniland Case 2001--the local population complained of the environmental devastation caused by the oil extraction industry in Nigeria

  • the African Commission on Human and People' Rights construed the generic language of Article 24 of the Charter, said: “an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and development as the breakdown of the fundamental ecological equilibrium is harmful to physical and moral health.”

Yao-Ming Hsu


Inter american convention on human rights

Inter-American Convention on Human Rights

  • Mayagma Sumo AwasTigni Community v. Nicaragua Case (2001)

  • the Inter-American Court held that logging concessions awarded by Nicaragua to private investors in an area claimed by a tribal community constituted a violation of the petitioners' property rights guaranteed by Article 21 of the American Convention.

    Art.21--Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society

    Collective Rights for indigenous people?

Yao-Ming Hsu


Unhrc

UNHRC

  • the case law of the Human Rights Committee reveals instances of bold adherence to a public interest approach in the construction of human rights in light of environmental considerations

  • Ex. Francis Hopu and TepoaituBessert v. France

    (Communication No. 549/1993)

  • the Committee upheld the petitioners' contention that a tourist development project in Polynesia involved an unacceptable impact on traditional tribal lands, including sacred burial grounds of the indigenous community.

Yao-Ming Hsu


Usa massachusetts v epa 2007

USA: Massachusetts v. EPA (2007)

  • Majority (5-4)-A state has a particular interest (Massachusetts)

    Other NGOs V

  • Dissenting opinions by Chief Justice John Roberts, “the very concept of global warming seems inconsistent with this particularization requirements”.—applicant will not be able to meet the test of particularized injury.

Yao-Ming Hsu


Conclusion

Conclusion

Fragmentations

Confluence

Environmental Right per se

Yao-Ming Hsu


Conclusion 1 fragmentations in internaitonal law interactions

Conclusion 1 Fragmentations in internaitonal law & Interactions

Yao-Ming Hsu


Conclusion 2 possible confluence

Conclusion 2 Possible Confluence

Yao-Ming Hsu


Conclusion 3 er per se

Conclusion 3ER per se

Yao-Ming Hsu


Thanks for your attention

Thanks for your attention

Yao-Ming Hsu

Email: [email protected]


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