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Human rights and the environment 1 (introduction)

24 important questions on Human rights and the environment 1 (introduction)

Does a binding human right to a safe and/or healthy environment exist?

The latest development is the UNGA which recognizes the right to a healthy environment in a resolution in July 2022. The relationship between human rights and environment has been recognized however before 2022 there was never a binding instrument which recognized the right to a safe and or healthy environment. And even still a resolution is not legally binding in nature so to answer this question no it does not exist. There is soft law which requires a right to a safe and or healthy environment like the UNGA, the UN Stockholm Declaration on Human Environment, etc.

What did the Inter-American Court of Human Rights argue in its Advisory Opinion on human rights and the environment, and does that deviate from what is in human rights treaties?

This court stated that the right to a healthy environment is both an individual and collective right that protects both present and future generation. The court also states that states have a multitude of positive obligations like prevention, regulation, supervision and monitoring.

What are procedural human rights to a safe environment?

Procedural rights are fundamental access rights. There are 3 main rights, namely, access to information, public participation and access to justice. Within environmental law this means, right to environmental information, right to public participation in decision-making (for example building something at a specific place), and the right to go to court, including for NGOs

Where and how have these procedural rights been codified?

These rights have been codified in the Aarhus Convention (UNECE,1998). (also the Escazu Agreement, 2018?)

Are human rights related to the environment acknowledged under EU law?

The EU is also bound by the Aarhus Convention however it is poorly regulated

Where is the right to a healty environment recognized?

UNGA recognizes the right to a healthy environment in a resolution (July 2022) o At the end of the day legally speaking not much has changed considering that this is only a resolution with is not legally binding.

Is the right to a healty environment recognized by eu?

EU Charter of Fundamental Rights: no right to a healthy environment, only a policy aim for the EU (Art. 37) – see later o This charter only has a duty for the government. A policy aim for the all of the EU not an individual human right

How is the right to a healty environment by the council of europe?

Parliamentary Assembly of the Council of Europe adopted a resolution calling for the adoption of a new Protocol to the ECHR on the right to a safe and healthy (or ‘ecologically viable’) environment (2009 & 2021
Here we are talking about adopting a protocol to the ECHR. The UN resolution recognizes that human rights exists but there is no link to human rights treaties. Here the resolution is that they change the ECHR and that the right the a healthy environment is implemented in it. 

What is special about the protocol of the echr?

Within this resolution there are a couple of elements that are relevant. o Also applies to future generations (duties vis-à-vis future generations such as non-regression)  Non-regression means that you can never go backwards in the level of protection of the environment. o Also calls for prosecution of violations of the right to a healthy environment o It is however questionable if states are going into this process, considering that once again it is a lot of change.

What are the provlems with art.24 of the african charter
?

There is not a very strong court behind this chart so effectively implementing this is quite hard.  There’s all people’s/ collective rights character which makes it very hard sometimes to prove that a collective right has been violated.

What does the Aarhus convention state about the right to a healhty environment?

Aarhus Convention on access to information, public participation and access to justice in environmental matters (UNECE, 1998), mentions the right to a healthy environment: o In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, … (Article 1)

What are the procedural rights to a healty environ ment?

Procedural rights follow from the human right to a healthy environment: o Right to environmental information o Right to public participation in decision-making o Right to go to court (access to justice), including for NGOs

What does eu law says about hr right to a healthy environment?

Charter of Fundamental Rights: A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development. (Art. 37)

Socio-economic right = integration principle 4 o Its not really formulated as a fundamental right it is more of an invitation for the Union. It kind of a social right.

Fundamental rights belong to common constitutional traditions and thus to EU law (Art. 6(3) TEU)

What does the aarhuis convention require eu institutions?

nformation: General regulation on access to EU’s documents applies
– Access to Environmental Information Directive (2003/4/EC)
• Participation: not possible in a meaningful way
– Public Participation Directive 2003/35/EC, Environmental
Impact Assessment Directive 85/337/EEC and Strategic
Environmental Assessment Directive 2001/42/EC
• Access to justice: Requirements for requesting an internal review
procedure have been highly restrictive and only allowed if acts of the
EU directly and specifically affected individuals (see cases T-338/08,
C-404/12)
– 2017: the Aarhus Convention Compliance Committee found
the EU non-compliant with the Aarhus Regulation
– 2021: Aarhus Regulated amended to broaden access to
justice. Success?

What is the access to justics?

Citizens can request an internal review procedure to be followed, but only if acts of the EU directly and specifically affect them:  This also applies to NGOs (which makes it impossible for them to go to court against an EU legal act on the environment)  General Court EU (2012): this is contrary to Aarhus convention (Art. 9) (case T-338/08)  CJEU (2015): an act of general scope cannot be reviewed & Art. 9(3) is too general, does not grant rights to individuals directly (case C404/12

Growing number of climate change litigations in domestic courts in which human rights are invoked, examples

: o Urgenda v. Netherlands (2019): State has to reduce emissions by 25% in 2020
o Sharma v Minister for the Environment (2021): case by 8 Australian children, Court recognized the "extreme and devastatingly brutal" future that children face as a result of climate change, Minister has a duty of care to avoid this harm, but Court does not block coal mine extension o Also against businesses, example: Milieudefensie v Shell (2021)

What existing human rights can be affected by climate change?

o Right to life, self-determination, privacy and family life, health, adequate food, safe drinking water and sanitation, shelter

How do we integrate justics/pverty into climate change negotiations?

Developed countries need to take the lead, support developing countries, allow developing countries to pursue economic growth in the first place to alleviate poverty

How can individual victims of climate change get compensation?

Example: a resident from Kiribati, a drowning island in the Pacific, who is losing his or her house and has to evacuate to a different country  Currently being negotiated under the UN Framework Convention on Climate Change (“Warsaw International Mechanism for Loss and Damage”

SLAPP (Strategic lawsuit against public participation)

- Meritless cases against critics with the sole aim to impose fear, intimidation, high legal costs, so as to silence the critics, often in environmental issues (often on mining) - Several states now have anti-SLAPP legislation to protect the right to participate in environmental activism and the freedom of expression on matters of public interest o Examples: USA, Canada, Australia - Courts also intervene, example: o Mineral Sands Resources v Reddell and others, High Court South Africa (2021): when the legal system is employed as a ‘weapon’ intended to ‘intimidate and silence’, then this constitutes an abuse of court process

What did the un rappoteur say about the right to a healty environment?

N Special Rapporteur David Boyd: 155 States have already
established legal recognition of the right to a healthy and
sustainable environment, in their constitutions, legislation and
through treaties

In what softlaw is the right to a healty environment estbalished/

Soft law: UN Stockholm Declaration on Human Environment (1972)
and Rio Declaration on Environment and Development (1992), and
others. Example:

How does a right to a healthy environment needs to be accomplshed to John knox un expert on hr

UN independent expert on human rights and the environment John
Knox (UN Office of High Commissioner for Human Rights): right to
healthy environment has to be achieved through applying
existing/other human rights

With which hr can you combine it ?

Right to life  Art. 2 European Convention on Human Rights
(ECHR) (more information next week)
• Right to home and private & family life  Art. 8 ECHR
• Right to access to impartial court  Art. 6 ECHR
• Right to full enjoyment of property  Art 1 First Protocol to
ECHR

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Human rights and the environment 1 (introduction)

24 important questions on Human rights and the environment 1 (introduction)

Does a binding human right to a safe and/or healthy environment exist?

What did the Inter-American Court of Human Rights argue in its Advisory Opinion on human rights and the environment, and does that deviate from what is in human rights treaties?

What are procedural human rights to a safe environment?

Where and how have these procedural rights been codified?

Are human rights related to the environment acknowledged under EU law?

Where is the right to a healty environment recognized?

Is the right to a healty environment recognized by eu?

How is the right to a healty environment by the council of europe?

What is special about the protocol of the echr?

What are the provlems with art.24 of the african charter?

What does the Aarhus convention state about the right to a healhty environment?

What are the procedural rights to a healty environ ment?

What does eu law says about hr right to a healthy environment?

What does the aarhuis convention require eu institutions?

What is the access to justics?

Growing number of climate change litigations in domestic courts in which human rights are invoked, examples

What existing human rights can be affected by climate change?

How do we integrate justics/pverty into climate change negotiations?

How can individual victims of climate change get compensation?

SLAPP (Strategic lawsuit against public participation)

What did the un rappoteur say about the right to a healty environment?

In what softlaw is the right to a healty environment estbalished/

How does a right to a healthy environment needs to be accomplshed to John knox un expert on hr

With which hr can you combine it ?

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What are the provlems with art.24 of the african charter
?