Human Right To Environment Mu 2012

A Human Right to Environment

Maastricht University, 8 February 2012Jan van de Venis

I

Chair, Stand Up For Your Rights (.org en info@)Attorney-at-law, JustLaw - Corporate Law and Human Rights

[email protected]

Questions?

• Is it “Human Rights and the Environment”?

…or is “Environment” a Human Right?

• So, should we speak of a “Human Right to Environment”?

International Binding and Non-Binding

• 1948 Universal Declaration on Human Rights

• 1966 ICCPR and ICESCR

• 1979 CEDAW

• 1989 CRC - Convention on the Rights of the Child

• 1992 Rio Declaration - referring to Stockholm Declaration

• 1998 Aarhus Convention

• 2005 UN SG Report on rel. Human Rights and the Environment

• 2007 UN GA Declaration on Rights of Indigenous Peoples

• 2008 UN OHCHR research Climate Change and Human Rights

• 2010 UN GA Resolution 4/157 Affirms...requires...realisation...right of every person and all peoples to a healthy environment."

• 2011-12 UN OHCHR research Human Rights and the Environment

Regional

• 1950 European Convention on Human Rights

• 1981 African Charter on Human and Peoples’ Rights

• 1988 American Convention on Human Rights in the area of Economic Social and Cultural Rights add. Protocol San Salvador

• Change in ECHR?

Jurisprudence - International

• UN HR Council and predecessor Commission

• UN HR Committee

• UN ESCR Committee

• ICJ

Jurisprudence - Regional

• African Commission

• Inter-American Commission and Court

• European Court on Human Rights art. 2 and 8 ECHR Start with Lopez Ostra v. Spain and Guerra v. Italy Recently Budayeva v. Russia and Bacila v Rumania

• European Committee on Social Rights "Marangopoulos"

National Law and Jurisprudence

• More than 100 constitutionsSome proclaim a duty of care for the government, some create an individual right

Like Brazil, article 225 FC: “Everyone has the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations.”

• Much local case law

Three Approaches

1. Environmental protection is a pre-condition to the enjoyment of internationally guaranteed human rights, especially the rights to life and health

2. Certain human rights are essential elements to achieving environmental protection, which has as a principal aim the protection of human health

3. Links between human rights and the environment are indivisible and inseparable. Thus posits the right to a safe and healthy environment as an independent substantive human right

Why a Rights-Based Approach?• Focus on individuals, not on States

• Rights are connected with obligations. Creation of both rights and duties and more awareness for individuals, business and States

• Linking of local, regional and global issues. A local threat or disruption easily turns into an international issue

• (Inter)national access to Court

• Individuals have rights where individuals get hurt by disruption of the environment

• Human rights claims are absolute (no lobby, negotiations or successful pressure)

Prof. Dinah Shelton:“The primary argument in favour of a human right

to a healthy and clean environment is that it elevates the entire spectrum of environmental issues to fundamental values of society, on a

level equal to other rights and superior to ordinary legislation.”

Very recent: UNHCR Report to HRCOpenly asks "Should the international community recognize a new human right to a healthy environment?" (points 6. and 10.), and opens up the debate for this 'new' right (points 11., 12., 13. and 31.).

Conclusions (points 78., 79. and 80.) it says:

"...raise question on the need for and the potential content of a right to a healthy environment...

…and how to implement a rights-based approach to the negotiation and implementation of multilateral environmental agreements...

Very recent: UNHCR Report to HRC...and how to monitor the implementation of human rights treaties that recognize the right to a healthy environment or interconnected rights."

And Recommendations…

"…This analysis and information generally is key to enable the Human Rights Council to provide guidance to the international community in regard to the pressing human rights challenges facing humanity in the twenty-first century, including the recognition of a general right to a healthy environment."

Document A/HRC/19/34 http://www2.ohchr.org/english/bodies/hrcouncil/19session/reports.htm

Next Step?

To conceive and acknowledge a binding international

human right to a healthy and clean environment

Would you like to monitor developments and push change?

www.RightToEnvironment.org

and soon

www.RightToNature.org

Budayeva v. Russia

Russia violated its positive obligation to protect the right to life under art 2 of the European Convention on Human Rights by failing to:

•   establish legislative and administrative frameworks to deter any threat to the right to life; and

•   provide an adequate judicial response following alleged infringements of the right to life.