970 HUMAN RIGHTS AND ENVIRONMENT CH. 15 NOTES AND QUESTIONS 1. An environmentalist’s perspective. Why might an environmentalist view the plight of the Inuit in the case study as a human rights issue and not one governed only by environmental law? What advantages ang disadvantages might ensue from taking a human rights-based approach? 2. A human rights advocate’s perspective. How might a human rights activist react to the proposition that climate change and other types of environmental harm can be addressed via human rights law, and why? Would they welcome novel claims of human right abuses? 3. A climate change activist’s perspective. How might a proponent of taking measures to mitigate or adapt to climate change react to a human rights-based climate change claim, and why? Would they welcome the introduction of new and politically sensitive issues into the climate change debate and negotiations? A. INTRODUCTION TO HUMAN RIGHTS LAW ‘THE NEW INTERNATIONAL LAW: PROTECTION OF THE RIGHTS OF INDIVIDUALS RATHER THAN STATES Louis B. Sohn 32 Am. ULL. Rev. 1, 17-21 (1982) THE DYNAMIC CHANGES IN INTERNATIONAL LAW SINCE THE SECOND WORLD WAR The modern rules of international law concerning human rights are the result of a silent revolution of the 1940’s, a revolution that was almost unnoticed at the time. Its effects have now spread around the world, destroying idols to which humanity paid obeisance for centuries. Just as the French Revolution ended the divine rights of kings, the human rights revolution that began at the 1945 San Francisco Conference of the United Nations has deprived the sovereign states of the lordly privilege of being the sole possessors of rights under international law. States have had to concede to ordinary human beings the status of subjects of international law, to concede that individuals are no longer mere objects, mere pawnS in the hands of states. Before dwelling on the various aspects of this revolution, however, it is useful to turn first to its prehistory, to the various strands of international law from which this new tapestry was woven. The human rights revolution did not appear suddenly full-grown, like Minerva springing from Jupiter's head. Its main substantive rules and its procedural safeguards can be traced back many centuries, to the origin of international law itself. . . .SEC.A INTRODUCTION To HuMAN RIGHTS LAW 7 THE NATURE OF “HUMAN RIGHTS” Up to this point it has been assumed that “human rights” is a well- known concept and does not require detailed caulanation, That assumption is, however, confronted by two problems. First, the theoretical nature of human rights has been debated fiercely, without resolution, since ancient time. In the play Antigone, Sophocles described Antigone’s dilemma when King Creon prohibited the burial of her brother, who had been killed while rebelling against the King. When she was arrested for violating that order, she defended her action by claiming that the King could not override the “immutable, unwritten laws of heaven.” The King replied that traitors must be punished; a state must have laws and they must be obeyed in all things, just and unjust alike; otherwise, there will be anarchy, and there is no evil worse than anarchy. Similarly, when rebelling against the English King, the American revolutionaries in 1776 relied in their Declaration of Independence on the concept of “inalienable rights” endowed by their Creator. In the same spirit, the French National Assembly in 1789 set forth in the Declaration of the Rights of Man and of the Citizen “the natural and imprescriptible rights of man.” More recently, Jacques Maritain pointed out: [The] human person possess[es] rights because of the very fact that it is a person, a whole, a master of itself and of its acts ... by virtue of natural law, the human person has the right to be respected, is the subject of rights, possesses rights. These are things which are owed to a man because of the very fact that he is a man. ‘The United Nations’ concept of human rights embraces this natural law concept of rights, rights to which all human beings have been entitled since time immemorial and to which they will continue to be entitled as long as humanity survives. Thus, both the Universal Declaration of Human Rights and the two Covenants assert in the first paragraphs of their preambles that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” More recently, in specifying the guiding concepts for future human rights work within the United Nations’ system, the General Assembly listed among those concepts the natural law idea that “human rights and fundamental freedoms of the human person and of peoples are inalienable.” __ These “inalienable” rights, both permanent and universal, differ from Tights, bestowed by positive law, that a state can give and take away No state is allowed to deprive individuals of these inalienable rights; such Tights are part of a higher law that no positive law can overrule.972___ HUMAN RIGHTS AND ENVIRONMENT _Cnt. 15 ‘There are two other categories of rights: first, those which a state can, limit in times of emergency, such as freedom from compulsory labor, right to liberty and security of person, right to humane treatment in prison, right to certain minimum guarantees in criminal proceedings, and freedom from interference with privacy, family, home, or correspondence; and, second, those which the state can limit in order to protect national security, public order (ordre public), and public health or morals. The second category includes the following rights listed in the Covenant on Civil and Political Rights: the right to liberty of movement; the freedom to choose one's residence; the right to a public hearing; freedom to manifest one's religion or beliefs in public; freedom of expression and to seek, receive, and impart information and ideas, orally or in print; right of peacefull assembly; and freedom of association. Of the rights listed in the International Covenant on Economic, Social and Cultural Rights, only the rights relating to trade unions are subject to similar restrictions. Other rights arising under the Covenant can be limited solely “for the purpose of promoting the general welfare in a democratic society. Some scholars may find these differentiations petty. Nevertheless, they show the marriage of positivist and natural law doctrines, the positive law helping to enforce natural law distinctions. THE INTERNATIONAL COVENANTS: OVERVIEW When the Commission on Human Rights finished the Universal Declaration, it began preparing the other part of the International Bill of Rights, a convention containing precise obligations that would be binding on the States Parties. There were initial fears that the various rights would drown in a sea of limitations and exceptions, but this danger was avoided by careful delineation of the conditions under which rights could be limited, and identification of those rights that could not be limited under any circumstances. Another difficulty did, however, arise. It proved impossible to formulate in a parallel manner all the rights listed in the Universal Declaration; it became necessary to divide the materials into two categories: civil and political rights; and economic, social, and cultural rights. These two categories were embodied in two separate Covenants—a name that was preferred to the less solemn “convention”— each differing from the other in several respects. The main difference was in their treatment after ing i a : coming into force. States Parties were to give the Covenant on Civil and Political Rights immediate effect through appropriate legislative d by making available an effective remedy to rao ites dita uae been violated. In contrast, each Stati Social and Cultural Rights a, its available resources, Party to the Covenant on Economic, Greed only to take steps, to the maximum ofWN SEC. INTRODUCTION To HUMAN RIGHTS LAW 973 eee could proceed slowly, progressing only as fast as its resources per! ac. _its resources should diminish, for example, during an economic crisis, its progress could wane. In contrast, the Covenant on Civil and Political Rights permits no such excuses; a state must guarantee civil and political rights fully on ratification, subject only to the limitations previously discussed. Although doubts have been expressed about the legal force of the Declaration, the Covenants are now binding on more than [one hundred sixty—updated figure by Eds.] states, [over three-quarters—updated ratio by Eds.] of the members of the world community. Among the parties to the Covenants are states from all regions: Africa, Asia, the Americas, Western Europe, and Eastern Europe. . . . Another general point must be made. Although the rights protected by the Covenants are stated with greater precision than those listed in the Universal Declaration, the former are broad enough in scope to surmount differences among various political, economic, and social systems, as well as among widely differing cultures and stages of development. Consequently, only the last factor—differences in stages of development, especially economic development—need be taken into account in applying the Covenant on Economic, Social and Cultural Rights. In contrast, even that factor does not excuse non-implementation. of the Covenant on Civil and Political Rights. ‘The Covenants and national constitutions or laws are meant to coexist. The Covenants do not supersede any constitutions or laws that provide more protection to individuals. Where the Covenants go beyond a domestic law in protecting a particular right, the state concerned has the duty to adopt any additional legislative or other measures that may be necessary to give effect to the right recognized in the Covenants. . . . Wuat ARE HUMAN RIGHTS? United Nations Office of the High Commissioner for Human Rights httpu/Awww.ohehr.org/EN/Issues/Pages/WhatareHumanRights.aspx Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. _ Universal human rights are often expressed and guaranteed by law, in the forme of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain974 HUMAN RIGHTS AND ENVIRONMENT. Cus from certain acts, in order to promote and protect human rights ang fundamental freedoms of individuals or groups. Universal and inalienable The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems. All States have ratified at least one, and 80% of States have ratified four or more, of the core human rights treaties, reflecting consent of States which creates legal obligations for them and giving concrete expression to universality. Some fundamental human rights norms enjoy universal protection by customary international law across all boundaries and civilizations. Human rights are inalienable. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law. Interdependent and indivisible All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others. Equal and non-discriminatory Non-discrimination is a fundamental principle in international human rights law. The principle is present in all the major human rights treaties and provides the central theme of some of international human rights conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women. The principle applies to everyone in relation i freedoms and it prohibits discrimination on the basis of al or See » race, colour and s ‘inci f non-diserimination is complemented by the principle of equrlitn ve restedsr In ‘TRODUCTION To HUMAN RIGHTS LAW a in Article 1 of the Unive peings are born free an reat Declaration of Human Rights: “All human equal in dignit; Both Rights and Obligations Human rights i ‘. etic and a dutics a both rights and obligations. States assume oo humor Soke a ler international law to respect, to protect and Oe ean nee ‘e obligation to respect means that States must sett igetion te g with or curtailing the enjoyment of human rights. pe obligation | pro ect requires States to protect individuals and groups agi net rights abuses. The obligation to fulfil means that States must tal positive action to facilitate the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also respect the human rights of others , THe ENVIRONMENT RIGHTS REVOLUTION: A GLOBAL TUDY OF CONSTITUTIONS, HUMAN RIGHTS, AND ‘THE ENVIRONMENT David R. Boyd 8-9 (2012) Rights represent reasonable minimum demands upon society that are rooted in moral values and thus place compelling principles on the side of the person asserting a right. As Ignatieff wrote, “Rights are not just instruments of the law, they are expressions of our moral identity as ‘a people.” Because rights provide recognition for society’s most cherished values, such as dignity, equality, and respect, the language of rights has considerable symbolic force and can be a source of political power. The power of rights discourse is demonstrated by the considerable progress achieved in some battles about justice, including those against racism and the oppression of women. However, one of the key messages of the modern human rights movement is that moral rights are not adequate and must be supplemented with enforceable legal rights to make them meaningful. Legal rights are said to empower rights holders to control the behavior of others, and are famously described as “trumps” by Dworkin. Shapiro argues that “rights review almost always places courts on the side of the less politically powerful,” protecting minority interests against majority tyranny and fecklessness. Not everyone has been seduced by the siren song of the rights revolution. It can be argued that rights are inherently undemocratic to the extent that they constrain governments from enforcing the preferences of the majority. ... Human rights are criticized for being individualistic, disregarding duties to others and the interests of the broader community. Despite their purported universality, the Western Conception of human rights has been criticized as a form of cultural imperialism. Rights can be divisive when there are conflicts between deeply held values (as in the ongoing abortion debate that pits the rightsSec. A INTRODUCTION TO HUMAN RIGHTS LAW 981 2. CONTENT OF HUMAN RIGHTS LAWS AND RELATED INSTITUTIONS The various human rights instruments contain a wide variety of norms, which are sometimes divided into so-called substantive and procedural rights. For purposes of the relationship between human rights and environment, the most important of the global substantive human rights include: the rights to life, health, adequate standard of living, to enjoy culture, and to own and use property. The right to an adequate standard of living has been interpreted by various authorities to include the right to safe drinking water and sanitation and the right to a healthy environment. Two other rights—which sometimes are referred to as Simpartiality rights’—have also been significant: equal protection and due process. Because regional human rights provisions differ from global provisions, some regional human rights that do not use the global terminology have also (and sometimes somewhat surprisingly) been central to the integration of environment and human rights. An example is the right to privacy and family life in article 8 of the European Convention on Human Rights, which is applied in the Taskin case, below. Six procedural rights have been critically important to environmental protection and to the integration of human rights and environment. These are the rights to: access to information, freedom of expression, freedom of assembly, freedom of opinion, freedom to participate in decision-making, and access to justice. Many human rights norms contained in treaties are also considered to be customary international law. Examples include the right to life and the six procedural rights mentioned above. ‘A wide variety of global and regional human rights institutions exist. ‘At the global level, the most important is the United Nations Human Rights Council (HRC), which is assisted by the Office of the High Commissioner for Human Rights (OHCHR). Each of the global human rights treaties also has a committee responsible for overseeing the rights in that treaty. In addition, the HRC appoints special rapporteurs, independent experts and other forms of what are referred to as “special procedures” with respect to the human rights aspects of various issues, typically with three-year terms and prescribed mandates. In reality, it is the mandate of a special procedure that is more important than the title, though the two are often related. Building on several resolutions related to human rights and the environment and human rights and climate change, the Human Rights Council established the mandate for an Independent Expert on Human Rights and the Environment during its 19th session in 2012 (HRC Resolution 19/10). The official title was “Independent Expert on human982 HUMAN RIGHTS AND ENVIRONMENT _Cu. 15 rights obligations relating to the enjoyment of a safe, clean, healthy ang sustainable environment”. Professor John Knox of Wake Forest University in the United States began working on the mandate in August 2012. Several of his reports are excerpted below. In 2015, the Human Rights Council decided to extend the mandate of Knox as a Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, for a period of three years (UN Human Rights Council Resolution 28/11 (2015). The Human Rights Council requested the Special Rapporteur, among other things, to: * Continue to study the human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment; * Continue to identify, promote and exchange views on good practices relating to human rights obligations and commitments to inform, support and _ strengthen environmental policy making, especially in the area of environmental protection; * Promote and report on the realization of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, and to disseminate his findings by, inter alia, continuing to give particular emphasis to practical solutions with regard to their implementation; and * Work on identifying challenges and obstacles to the full realization of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment and protection gaps thereto, including in the context of sustainable development. On a related topic, in 2014, the HRC appointed Baskut Tuncak (of the Center for International Environmental Law) to be the third Special Rapporteur on Human Rights and Toxie Substances. Other special procedures deal with rights that are related to environmental issues, a8 well, such as the Special Rapporteur on the Rights of Indigenous Peoples, the Special Rapporteur on the Right to Food, Special Rapporteur on the Human Right to Water, and the Special Representative of the Secretary General on Human Rights and Transnational Corporations and Other Business Enterprises. Regional human ri institutions also appoint ts ights institutions