Monday, January 28, 2013

HUMAN RIGHTS AND THE ENVIRONMENT


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
Miccosukee Website, (2013), http://www.miccosukee.com/tribe [Accessed on 23rd January 2012]
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]