1.0 Introduction
It
is very rare for the environmental aspects of the human rights to be
deliberated upon in academic forums. In the modern day, however, the number of
environmental cases has increased in human right courts leading to a greening
of the existent human rights laws (Kravchenko and Bonine, 2008, p. 6). In the
year 2005 the Council of Europe adopted the Manual on Human Rights and the
Environment and indicated some general principles aimed at providing guidance
to courts pertaining environmental cases. The discussions about the
environment, its conservation and the role it plays in the lives of humans, particularly,
human rights, has always been a topic of interest for scholars in different
disciplines from disciplines. In spite of the fact that the environmental laws
are perceived to lack a perfect fit in human rights, there are three main
perspectives through which the environmental laws can be disambiguated. Boyle
(2010, p. 1) indicates that the current political and single rights can be
utilized to provide environmental information as well as judicial solutions.
Under this perspective political systems are obliged to safeguard the life and
property of its citizenry from environmental damage.
(a) Stockholm Declaration versus Rio Summit
In
the year 1972 a convention was held by the United Nations whose main concern
was to deliberate on the role of ‘Human Environment’. From this Convention on
Human Environment the Declaration on Human Environment was formulated; this
declaration constituted 109 recommendations and 26 guidelines which were
specifically fashioned to guide international regulations regarding the environment.
It is these recommendations and principles that constitute the Stockholm
Declaration. The Stockholm Declaration has been the genesis of the
international laws on the environment as well as the establishment of UNEP-an
environmental institution committed to safeguarding the environment. In
addition to this, the Stockholm Action was also formed (Kravchenko and Bonine,
2008). Regardless of the fact that the Stockholm conference did not come up
with any legally obligatory outcomes, this document is the first to indicate
and acknowledge the right to an environment which is in a good state as well as
the safeguarding of the different species of the world and their dwellings. In
the year 1992, in Rio de Janeiro, the earth Summit, also referred to as the United
Nations Conference on Environment and Development (UNCED), was held. This
summit was attended by 178 nations of the world who passed a program designed
for environmental conservation. It was from this Earth Summit in 1992 that the
Rio Declaration in Environment and Development was also adopted. This
declaration established 27 principles which were designed to ensure sustainable
growth in different parts of the world. The Rio Summit was inclined to the
notion that for any form of sustainable development to occur in the world it is
crucial that the environment be safeguarded and well taken care of (Filmer-Wilson and Michael, 2005).
Commentators
have often argued that there was a change of agenda from the Stockholm
Declaration of 1980 and the Rio Summit of 1992; these perceptions are misguided.
Under the Stockholm Declaration of 1980 the Union of Conservation of Natural
Resources came up with the World Conservation Strategy (WCS). According to this
strategy, protecting the environment was perceived as an impossible venture if
there was no sustainable growth aimed at poverty eradication (United Nations
publication, 1972). The WCS insisted that there is indeed an interdependent
relationship between sustainable development and the safeguarding of the
environment; nevertheless, WCS also clarified that development is dependent on
the preservation of the environment (Kravchenko and Bonine, 2008). Principle 4
of the Rio Summit declares that “In order
to achieve sustainable development, environmental protection shall constitute
an integral part of the development process and cannot be considered in
isolation from it”. The second proclamation of the Stockholm Declaration of
1980 states that: “The protection and
improvement of the human environment is a major issue which affects the
well-being of people and economic development throughout the world”(United
Nations publication, 1972). The second principle of the Declaration then states
that: “Economic and social development is
essential for ensuring a favorable living and working environment for man and
for creating conditions on earth that are necessary for the improvement of the
quality of life” (United Nations publication, 1972). Rather than conflict,
the Stockholm Declaration and the Rio Summit tend to complement each other in
depicting that in spite of the economic and social development being
inevitable, it should be conducted in a manner that does not damage the
environment (Kravchenko and Bonine, 2008).
(b) Miccosukee Tribe of Florida
The
topic on the manner in which the Miccosukee Tribe of Florida has made use of
the environmental laws of America to pursue the tribe’s interests and concerns
is very interesting. The Miccosukee tribe refers to a group of Native Americans
believed to have their genesis on the area that is referred to as Alabama and
Georgia in the modern day America. As indicated in the Miccosukee Website
(2013), the Miccosukee tribe then moved from these regions to settle in Florida
during the 18th and 19th centuries. Before they separated
in mid 20th century due to linguistic discrepancies, the Miccosukee
tribe is believed to have had very close ties with the Seminole Indians. With
the approval of the Tribal Constitution by the US Secretary of the Interior of
the American federal political system in 1962, the Miccosukee tribe was
acknowledged lawfully. Presently, the Miccosukee tribe has some reservation
areas in Florida State; these are at US 41, Alligator Alley, Tamiami Trail and
another 2 at Krome Avenue (Miccosukee Website, 2013).
Many
of the tribe’s activities are conducted on the four pieces of land in the
Tamiami Train Reservation which is at 40 miles west of Miami. In this
reservation, the Miccosukee tribe has attained a permit from the National Park
Service to use the land; the permit will expire on the 24th of
January the year 2014. In addition to this, the Miccosukee tribe has been able
to obtain a perpetual lease for 189,000 acres from the Florida State. This
parcel of land is a segment of the South Florida Water Management District’s
Water Conservation 3A south (Alfred, 2008, p. 260). This land is put to use by
the Miccosukee tribe for a number of purposes; these include subsistence
farming, hunting, frogging and fishing. The largest reservation for the tribe
is the Alligator Alley Reservation which comprises 74,812.37 acres of land. 20,000acres
of this land have been utilized for the growth of the tribe (Miccosukee
Website, 2013); as a matter of fact, the tribe constructed a modern service
station plaza supervised by the tribe for putting up a police sub-station as
well as housing travelers along SR84. The Temporary Occupacy and Access Permits
offered by the tribe to non-Indians has also allowed for the conservation of
hunting camps in 15,000 acres of the tribal wetlands. The tribe has plans to
increase the number of business and farming development projects in the
reservation areas given to it in Florida (Miccosukee website, 2013).
(c) World Bank Inspection Panel Investigation
According
to the World Bank (2011), the inspection panel refers to an autonomous agency
that was set up by the Executive Directors of the International Bank for Reconstruction
and development (IBRD) in association with the International Development
Association (IDA) on the 22nd of September the year 1993. Comprised
of three investigators, the panel was formed with the intention of allowing
individuals who are directly unfavorably impacted by projects financed by
financial institutions an agency through which they could oblige the Bank to
act in accordance to the policies and principles it inclines to. The panel is
tasked with the responsibility of carrying out autonomous investigations. There
are a number of requirements that are necessary before any agency can be
allowed to assemble an inspection panel investigation. The request for an
investigation can be made by a board, an organization, the people impacted
adversely by the project or by a requester, in this case defined as a person
representing the affected people. Bank staff, non-governmental agencies as well
as the project heads can also ask for an investigation. Any member of the
public of a non-governmental organization is allowed to participate and
directly or indirectly present the inspection panel with information that they
believe to be important in the investigations being carried out. Nevertheless,
such information should not be more than 10 pages, inclusive of a one page
synopsis; if need be, supporting papers may be attached (World Bank, 2011).
The
first step in requesting an investigation is for the requester to put their
requests in writing, clearly depicting important facts as well as the damages
suffered by the affected party as a consequence of the Banks oversights or
alleged actions (World Bank, 2011). It is necessary that the requestors exhaust
the available domestic remedies before complaining to the inspection panel;
this is due to the fact that in the request, the requestor is expected to
outline the alleged oversights or omissions, elucidate the actions already
pursued in responding to the issue, efforts to inform the administration of the
issue as well as the administration’s response upon being informed. After
receiving the request the Panel’s Chairperson is tasked with the responsibility
of informing the Executive Directors as well as the Bank’s President. Three
weeks after being alerted on the request, the Management of the Bank is
expected to present to the Panel proof that it has adhered to or has intentions
to conform to the policies governing banks. 21 days after receiving such proof,
the Panel makes a decision on whether or not the case is worthy of
investigation (World Bank, 2011). The entire process is depicted in the diagram
below.
(World Bank Group,
2011)
(d) Justiciability
Justiciability
refers to a concept that is utilized to depict the restrictions in legal issues
upon which a court may exercise the judicial power it wields. An example is the
lawful issue of standing that is utilized in determining the suitability of
parties that present suits. In the American judicial systems, the concept of
justiciability is used for purposes of establishing the capacity of a court to
come up with effective rulings for disputes or cases it is presented with. In
the event that the courts are unable to come up with effective resolutions,
justiciability is perceived as being absent (May and Ides, 2007, p. 98). There
are several requirements that an issue has to fulfill in the US for it to be
termed as justiciable; firstly, the different parties involved in the dispute
must not be interested in attaining advisory opinion. Secondly, there must be a
real divergence or disagreement between the parties. Thirdly the issue should
be neither unripe nor moot. An unripe matter refers to that which has not
exhausted all judicial options available to the parties involved or one in
which the complaining party is not threatened with any form of damage. A moot
question is one in which the threats of injury have been eradicated. Fourthly,
the suit presented in the courts must not be aimed at seeking a decision
concerning a political question (McGoldrick, 2010, p. 981).
A
political question is that which investigates the appropriateness of the court
frameworks as agencies for hearing cases. The political question is inclined
towards the notion that at times the questions involved will be political,
rather that legal, in character. In the event that the question is political,
Courts will reject it on the basis of lacking the necessary jurisdiction.
Examples of justiciable questions include those pertaining to contracts or law
infringements; a feasible political question is that which seeks to ascertain
the winners in political elections. Political questions are better decided upon
by the citizens by use of their sovereign rights, freedoms and discretions. A
political question has close associations with the concept of justiciability;
as a matter of fact, the political question was formulated as part of the
justiciable doctrine. Arnhart (2003) claims that the political question
terminology was first utilized by Chief Justice John Marshall in the year 1803
during a time when there was war between different groups of politicians in
Washington; the court did this so as to remain careful and avoid further political
confrontations.
The
Office of Research and Development in the United States Environmental
Protection Agency is at the moment involved in the formulation of strategic
policies that will ensure sustainable development through the utilization of
new technology, effective policies of environmental and economic well being as
well as increased use of scientific knowledge (Kravchenko and Bonine, 2008).
(e) European Convention on Human Rights
In
spite of the fact that there lacks a specific and particular right to a healthy
environment in the European Convention on Human Rights, there are many ways for
one to infer one out of the articles that are depicted in the declaration. The
most useful articles are 2, 3 and 8.The European Convention on Human Rights is
comprised of 5 sections, each having a number of articles. The first part of
Article 2 states that “Everyone’s right
to life shall be protected by law…” (Council of Europe, 1950).The second
part of the article illustrates a number of incidences in which the deprivation
of life shall not be perceived as infringing upon the right of life; these
include “In defense of any person from
unlawful violence, in order to effect a lawful arrest or prevent escape of a
person lawfully detained and in action lawfully taken for the purpose of
quelling a riot or insurrection”. Article 3 of the European Convention on
Human Rights asserts that “No one shall
be subjected to torture or to inhuman or degrading treatment or punishment”.
The 8th Article of the European Convention on Human Rights reveals
that “Everyone has the right to respect
for his private and family life, his home and his correspondence” (Council
of Europe, 1950).
In
addition to these laws that are aimed at ensuring that life is safeguarded,
there are certain procedural rights of access to information that are
constituted in Articles 10 and 13. Under the 10th article of this
convention, it is stated that “Everyone
has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers; this article
shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises” (Filmer-Wilson
and Michael, 2005). Nevertheless, the second part of this article
indicates that “The exercise of these
freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by
law”. As indicated by the Council of Europe (1950), Article 13 is perceived
as a summary of all the rights and freedoms indicated in the convention; this
is due to the fact that it aims at safeguarding an individual’s well being by
stating that “Everyone whose rights and
freedoms as set forth in this Convention are violated shall have an effective
remedy before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity” (Council of Europe,
1950).
2.0 Global Climate Change, Energy and Ecosystem Restoration
There
are three main environmental issues that are discussed in the modern day; these
are global climate change, ecosystem restoration and energy. Of these three
topics the one that would be mist suitable to be deliberated upon from a human
rights approach is the climate change issue. This is due to the fact that, as
stated in the Articles 2, 3 and 8 of the European Convention on Human rights,
persons have a right to life as well as that of being protected and safeguarded
from any eventualities that may infringe upon the quality of life that they
enjoy. There are a number of activities by nations and their commercial
organizations that are perceived as infringing upon this right since they
contribute to climate change which in turn has adverse effects on those
affected.
3.0 Conclusion
In
conclusion it is important that the judicial system, particularly courts, legal
experts and the laws of the land acknowledge the importance of environmental
right as being enforceable under the umbrella of human rights. This is due to
the fact that the implication of environmental legislature is such that it can
no longer be perceived as simple policy options.
4.0 References
Alfred R. L., (2008), Beyond the Myth of Everglades Settlement: The Need for a Sustainability
Jurisprudence, Tulsa Law Review 44.1: pp.251-272
Arnhart,
L. (2003), Political Questions: Political Philosophy from Plato to Rawls.
3d ed. Prospect Heights, Ill.: Waveland Press
Boyle,
A., (2010), Human Rights and the
Environment: A Reassessment, Boyle UNEP Paper Revised from Fordham Environmental Law Review, pp.
1-5
Council of Europe, (1950), The European
Convention on Human Rights, http://www.hri.org/docs/ECHR50.html [Accessed on 23rd January 2013]
Daly, P., (2010), Justiciability and the
“Political Question” Doctrine, University of Cambridge, 160 Public Law, pp.
160-5
Filmer-Wilson, E. and Micheal, A., (2005), Integrating
Human Rights into Energy and Environment Programming, A Reference Paper
Kravchenko,
S. and Bonine, J. E., (2008), Human
Rights and the Environment: Cases, Law, and Policy, Carolina Academic
Press, p. 6-
May,
C. N. and Ides, A., (2007), Constitutional Law: National Power and
Federalism (4th ed.). New York, NY: Aspen Publishers. pp. 97–99
McGoldrick,
D., (2010), The Boundaries of
Justiciability, 59
International and Comparative Law Quarterly, p. 981
United
Nations publication, (1972), Report of
the United Nations Conference on the Human Environment, Stockholm, 5-16 June
1972, Sales Number E.73.II.A.14 and
corrigendum, Chapter 1
World Bank Group,
(2011), The Inspection Panel, http://go.worldbank.org/SWMCVT8FE0
[Accessed January 23rd 2013]
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