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HR and environment

18 important questions on HR and environment

Under which human rights in the ECHR are most environmental cases discussed?

Article 8 of the ECHR which is the right to respect for private and family life. This article was first accepted in the Lopez Ostra-case (1994).

What obligations follow from art. 8 ECHR for government authorities when they take decisions related to the environment?

There is a positive and a negative obligation which flows from art. 8 ECHR. Positive obligation: states have the duty to ensure that people can enjoy their home without pollution (regulate polluting activities) Negative obligation: states have the obligation to refrain from pollution that harms the right to home

In how far and under which conditions can environmental pollution be allowed?

Environmental pollution can be allowed and states can derogate. But only if it is, (1) in accordance with the law, (2) necessary for the economic well-being of the state or region as a whole, (3) there has to be a fair balance between the benefits for economic well-being and the infringement of human rights, (4) margin of appreciation (courts allow some room for developing states when it comes to this

Can a state’s climate policy infringe on human rights?

Yes, prime example is the Urgenda case in the Netherlands. Here the found that a poor climate change policy infringes human rights of art. 2 and art. 8 ECHR. (here you see art. 8 again!)

Can human rights cases be lodged on behalf of future generations or on behalf of a river?

Yes they can! Look at the case Minors Opposa v. Secretary of the Department of Environmental and Natural Resources, The Supreme Court of the Philippines (1993). They can also maybe be lodged on behalf of a river considering they stated in New Zealand legislation in 2016 that the Whanganui river can be considered a legal person with rights.

What are the pros and cons of going to court on behalf of natural objects or future generations?

I believe the cons are definitely something to consider, because even more cases will be there, and at this point the current Gedownload door Esmee De Koning (esmay100@gmail.com) lOMoARcPSD|5097417 system is not even properly dealing with environmental law cases concerning human right, so allowing people to go to court on behalf of natural objects or future generations will bring about an overwhelming amount of cases. On the other hand there are also pros like it will most likely help improve the environment and environmental law in itself.

How does the echr reconize hr and environmental law?

.greening existing rights’
–recognising that environmental degradation may contribute or amount to a breach of a rightprotected through the European Convention on Human Rights
• right to life (Article 2)
• the right to a fair trial (Article 6(1))
• the right to respect for privacy,
home and family life (Article 8)
• the right to peaceful enjoyment of
one’s possessions (Article 1 of
Protocol No. 1 to the ECHR

What was decided when they overturned hatton?

, the Grand Chamber of the ECtHR overturns the decision: o No special approach (just apply Lopez Ostra), there is no apparent big problem caused by night flights, people can relocate if they are bothered by the noise, sufficient data on economics and impacts are available. o Therefore the Hatton case is NO LONGER RELEVANT!

Chassagnou (1999), art.1 first protocol echr

Chassagnou (1999), claimant is someone who, under French law, had to tolerate that hunters crossed his property when hunting, which was against his ethical view on hunting  ECtHR: this infringes on Art. 1 FP; under this article, you have the right to stop armed people from being on your territory  Chassagnou won this case.

How is the achr used for environmental hr cases?fernandez vs honduras.

Referred to in cases on (other) human rights mentioned in the ACHR itself, for example: (it’s used as an extra argument where other human rights are invoked)  Murder of an environmentalist by Honduran state agents not only was an infringement of her right to life, but also of the right to association because the state intended to silence environmental activists that form associations to protect the right of Art. 11 San Salvador Protocol (Kawas-Fernández v. Honduras, 2009)

How does art.4 achr work with environmental hr cases?

Art. 4 ACHR (right to life) o Severe environmental degradation at communal lands constitutes infringement of Art. 4 when the State knows about the dangers and does not intervene - Kichwa indigenous people of Sarayuko v Ecuador (2012) on using explosives by oil company (and many other cases) o States have to adopt precautionary measures when they know of severe environmental degradation  Many cases on foreign oil companies invading and polluting indigenous peoples territories » Including provisional measures (halting activities, suspending concessions, providing medical treatment)

Rt.13 achr reyes vs chile how does it work with environmental law?

- Art. 13 ACHR (right to information) o States have to give environmental information to NGOs and individuals that request such information, regardless of whether they can show to have a direct/personal interest, Reyes et al v Chile (1998) and many others

Art.21 ACHR right to property, saramaka vs surnam how does this work with environmental law and hr

Art. 21 ACHR (right to property) Gedownload door Esmee De Koning (esmay100@gmail.com) lOMoARcPSD|5097417 o States have to consult with members of indigenous peoples when decisions have an impact on their traditional communal territory (right to participation), Saramaka v Surinam (2007) a.o

Duarte agostinho and other postugal

Duarte Agostinho and others v. Portugal and others – six Portuguese children and young persons bring case against 33 states and the EU for poor climate change policy based on Articles 2, 8, 1 FP but also 3 (torture) and 14 (discrimination)  Minors stating that climate change is not addressed enough and they claim that multiple rights have been violated.

Inuit petition us commision on hr

Inuit petition versus the United States (2006): ‘Acts and omissions US’ alleged to have caused loss of ice and change of Inuit life and culture  Claim rejected, no clear violation of human rights  In the US very often the court says this is a matter of politics

Legal personhood rivir atrato

River Atrato case on illegal mining (Colombia Constitutional Court, 2016) o Government violated the indigenous communities’ rights to life, health, water, food security, clean environment, and the right to culture and territory o Court recognized that the Atrato River is a legal entity with its own rights to protection, conservation, maintenance and restoration by the state and local communities  Court requires that the rights of the river will be represented by a guardian – with one representative from Government and one from the local communities

Art.ACHRP right to development what was recognized for the first time in 2010

Centre for Minority Rights Development (Kenya) and Minority Rights Group International on
behalf of Endorois Welfare Council v. Kenya, 276/2003
• February 2010 ruling: First recognition of Indigenous rights over traditionally owned land by the Commission

Constitutional Court of Colombia: River Atrato decision (2016)

The court ruled that the Atrato River (most polluted river) needs better care and ‘is subject to the rights that implicate its protection, conservation, maintenance and in this specific case, restoration’. The suit also calls out the state on its neglectful behavior and orders that the river be cleaned up. The court’s ruling makes it clear that the river has rights.

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HR and environment

18 important questions on HR and environment

Under which human rights in the ECHR are most environmental cases discussed?

What obligations follow from art. 8 ECHR for government authorities when they take decisions related to the environment?

In how far and under which conditions can environmental pollution be allowed?

Can a state’s climate policy infringe on human rights?

Can human rights cases be lodged on behalf of future generations or on behalf of a river?

What are the pros and cons of going to court on behalf of natural objects or future generations?

How does the echr reconize hr and environmental law?

What was decided when they overturned hatton?

Chassagnou (1999), art.1 first protocol echr

How is the achr used for environmental hr cases?fernandez vs honduras.

How does art.4 achr work with environmental hr cases?

Rt.13 achr reyes vs chile how does it work with environmental law?

Art.21 ACHR right to property, saramaka vs surnam how does this work with environmental law and hr

Duarte agostinho and other postugal

Inuit petition us commision on hr

Legal personhood rivir atrato

Art.ACHRP right to development what was recognized for the first time in 2010

Constitutional Court of Colombia: River Atrato decision (2016)

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