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Environmental rights

This module is about the environment, and how you can use the law and court processes to protect it, and by doing so also protect all the people and other species that life in and make up the environment. The environment is everywhere, so this is a huge subject, which overlaps with many other issues such as land, climate change, and health.

The environment and human rights are closely linked. As John Knox, UN Special Rapporteur on Human Rights and the Environment, said

All human beings depend on the environment in which we live.  A safe, clean, healthy and sustainable environment is integral to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation.  Without a healthy environment, we are unable to fulfill our aspirations or even live at a level commensurate with minimum standards of human dignity.  At the same time, protecting human rights helps to protect the environment”

 

 

1

Protecting the environment: an introduction

Harm to the environment from human activity is occurring all over the world. It happens in every country, every sea and throughout the atmosphere. Often environmental damage is unlawful or infringes someone’s rights. This section of the website explains how you can use the law, and going to court, to do something about these problems. This may be by stopping the damage or destruction or by ensuring restoration of the environment or by obtaining compensation or some other form of remedy for you or your community.

Legal action can make a difference

Although sometimes the use of a court process seems impossibly hard to achieve, it can be and is done, successfully thousands of times and year and in almost every country in the world. A famous example is the battle fought in courts in Nigeria, New York, London and elsewhere on behalf of the Ogoni people of Nigeria against Shell – a case study video is here .

Sometimes you may not get all that you ask for but still establish an important principle of law on which others may be able to build in future:

Example: Environmental organisations challenged Norway’s oil drilling in the Arctic. The court ruled that a clean and healthy environment is a constitutional right but that Norway is not liable for exported greenhouse gas emissions. (Greenpeace and its allies have filed an appeal). But there are many court cases on a much smaller scale.

Example: Friends of the Irish Environment sued to prevent expansion of Dublin Airport. While ruling against the plaintiffs, the High Court judge nevertheless held that the Irish Constitution protected “A right to an environment that is consistent with the human dignity and well-being of citizens at large is an essential condition for the fulfillment of all human rights.”

Protecting the Environment should not be a matter of life and death.

Environmental Human Rights Defenders (EHRDs) are themselves endangered. Global Witness and others report increasing threats to individuals and communities who strive to protect their environment against land-grabs, deforestation, strip-mining, megadams and other threats.  197 EHRDs were murdered in 2017 alone, the highest death rates occurring in Brazil, Philippines, Colombia and Mexico.

Wherever you live, it takes careful planning and much determination to bring an environmental case. It is not always possible or feasible and bringing a court case almost always needs expert confidential advice and assistance. A list of organisations that might be able to help bring an environmental court claim is [to be compiled]

 

 

 

 

2

Some general points

There are many different types of environmental damage caused by many different types of activity. There are different laws and regulations for different situations. This environment section of the website has sub-sections divided into parts dealing with different types of damage and different types of damaging activity – the contents are listed in section 5 below. You should look at the sections most relevant to your problems. Often problems combine or overlap. So for example a mine might cause pollution of water from chemicals, and of air from dust or processing, and damage a forest where the mine is.

In nearly all cases where you might be able to use the law to protect the environment you will need to be able to do at least these things –

  • Show and prove by “evidence” what harm or damage has occurred (details are on the Going to Court section here)
  • Show and prove by evidence why and how it is happening or has happened – who or what is the cause (details are on the Going to Court section here – and see below)
  • Identify laws which apply – to stop or prohibit what is happening or to give you rights can you can rely on in court – this is what this environment section does
  • Ensure that there is a court or tribunal that will hear the case, which has power or “jurisdiction” over the other party and which will allow you “standing” to bring the case (details are on the Going to Court section here)
  • Identify and overcome all the practical obstacles involved in taking a case to court – including getting legal advice, following the court procedure, getting necessary funds, dealing with political problems such as corruption or opposition to what you are doing, and avoiding or minimising risk to the safety of you or others that it is safe to act (details are on the Going to Court section here)

Before bringing any court case, there are many practical problems and issues to consider. A list of things to consider, and guidance on them is in the “Going to Court” section. However some very important general points

  • It not enough, to bring a case, that you believe or know that laws are being broken and wrongful and harmful activity is taken place. You need to be confident that this can be proved to a court or to officials or other organisations who may take action on your behalf.
  • Many of the state or corporate parties who cause pollution and environmental damage are powerful and want to protect what may be profitable activities. They often claim that the activities are clean and well regulated even if they are not.
  • Evidence is important in most legal cases, but particularly so in environmental ones. This is because success often depends on proof of contamination or pollution. Sometimes this can only be done by trained scientists. However you can gather important evidence by photographs, videos and notes and … collecting reliable signed statements from witnesses to environmentally harmful practices. However, always make sure that witnesses are aware their statements might be used in court where they will become publicly available.
  • You should be careful and balanced (do not exaggerate things) and  methodical in recording problems and any evidence of when they occur. This may include
    • Keeping a record or diary of when people are ill (if pollution is causing health issues) together with doctor’s or hospital notes
    • Taking photographs or videos on phones of contaminated land or water, or dust or other visible problems

 

3

Types of legal claim or action

Whatever the type of environmental issue, the way to use the law and court action in response is likely to be one of the following

(a) Administrative or public law challenges

By challenging in court a licence or permit, granted by a public body which allows an activity which causes pollution or otherwise damages the environment. So if for example a licence to open a mine has been granted when the conditions required by law have not been met, or a consultation with local people required by law has not been undertaken, it may be possible to bring a case to have the licence cancelled.

(b) Civil law claims against someone at fault or doing something causing harm

If the activity is wrongful and causing damage, suing the wrongdoer or those associated with them in “tort” to obtain an order to stop or pay compensation or remediate the damage. DO if a factory causes toxic chemicals to be carried on the wind and on to the land of your house and community you may be able to sue for compensation or for an order to require the activity to stop.

Tip: The most effective action may be in courts abroad from where the damage occurred, for example where the person responsible or its “parent company” is based.

Example: A case of UK parent company sued for environmental damage caused by Zambian copper mining undertaken by its local subsidiary

Example:  the case brought in the USA against a US company for pollution of the lands of Peruvian Amazonian River peoples

 Tip: Sometimes actions can be brought not against the people directly responsible for the wrongful action, but those supporting or financing them

Example: The IFC has been sued in the US for its role in financing a Honduras businessman who is alleged to have used widespread violence against local farmers who claim the land now used for palm oil plantations.

 

(c) Pollution control regulation or legislation

By relying on specific rules or regulations which prohibit pollution or environment damage, and seeking to have them enforced. Most states have laws which regulate pollution generally and also laws which apply to specific industries such as mining or power stations. If these are being broken, the court may order this to stop or impose a fine or prison sentence on the person breaking them

 

(d) Specific rules or regulations which protect certain habitats or species or groups of people such as indigenous people

Examples:

A Nepalese site of cultural importance was protected from mining which infringed right to clean environment –

In the Philippines proposed oil extraction which would have  affected  the  National Integrated Protected Areas System was stopped

 In the: Ogiek case in Kenya the actions of the Kenyan government were held to have infringed the rights of the Indigenous Ogiek people living in forested areas of Kenya  (including rights  to property/land to practise their religion)  and their expulsion from their traditional lands was unlawful                                              

 

(e) rights that you may have under your countries constitution or under human rights that apply to you, to have a healthy or clean environment

Many modern constitutions provide for this.

Example: Article 42 of the Kenya constitution provides that “Every person has the right to a clean and healthy environment…….., which includes the right–(a) to have the environment protected for the benefit of present and future generations”

Example: Argentina Constitution Article 41:  All inhabitants are entitled to the right to a healthy and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations; and shall have the duty to preserve it. As a first priority, environmental damage shall bring about the obligation to repair it according to law.

These provisions do not men that all environmental damage or harm will be prevented but it may mean that some government policies or acts infringe citizens’ rights

Example: In 2018 a proposal for pipeline and oil terminal in the Bay of Panama that threatened critical wetlands recognized in 2003 by the Ramsar Convention. Panama’s Supreme Court ruled that the project violated “rights to a healthy environment.”

 

Human Rights and Environmental Rights are closely intertwined. Often damage to the environment involves or causes breach of human rights, and using the law to protect  those rights is a way of protecting the environment.

(f) By pressing for prosecution and criminal penalties for those who break the law, and instituting criminal proceedings where possible

 In some countries only the police or government bring criminal proceedings. In others criminal and civil proceedings may be combined. In either case punishment of those who break the law may be a useful remedy and may be accompanied by an order to pay compensation.

 

(g) rights to information

Although not always involving court action you may have a right to information, which would require a company or public body to release information related to the environmental and social impact of the project.

Examples:

Requests under UK’s Environmental Information Regulations 2004.

 In the U.S., EarthRights was able to use the Foreign Legal Assistance law, 28 U.S.C. 1782, to get environmental information relevant to the impacts of gas flaring in Nigeria from Chevron.

The second paragraph of Argentina Constitution Article 41: The authorities shall provide for the protection of this right, the rational use of natural resources, the preservation of the natural and cultural heritage and of the biological diversity, and shall also provide for environmental information and education.

Ghana’s Environmental Protection Agency, publishes annual performance ratings for extractive industries: http://www.epa.gov.gh/epa/projects/akoben

 

 

4

Sources of law

Working out what laws may be able to help you is often difficult for those who are not specialist lawyers, and it is advisable to find expert help. However these are the types of law most likely to be relevant

 

(a) National laws and regulations controlling pollution generally.

These varying from country to country but nearly all countries have laws and regulations limiting pollution

 

Example:  The Zambia Environment Protection and Pollution Control Act 1990

 

(b) National laws and regulations which provide for licenses or permits for certain activities like mining or industrial processes

Example: South Africa’s National Environmental Management Act

(c) National laws and regulations applying to particular industries like mining or power generation

Example: Brazil’s Occupational Health and Safety in Mining Regulations

(d) National law which governs when a person causing damage to someone else is committing a legal wrong (sometimes known as tort or delict )

Examples

Claims in Negligence where a polluter fails to tale reasonable care to avoid damage or injury to another person

Claims in nuisance where use of a land (for example for manufacturing or mining) result in adverse effect on the land of someone else

 

(e) Local, national or international laws of regulations protecting certain areas, species or habitats

Examples of these include parks, forests, habitats of endangered species, UNESCO/local heritage sites , areas occupied or used by Indigenous People (see above)

 

f) Provisions in national laws or a national constitution providing right to a clean or healthy environment

Example: The 1995 Constitution of Uganda contains rights to a clean and healthy environment. How this may be used is discussed in this article

Example: The Bill of Rights in the 1996 Constitution of South Africa, Article 24 sets out the rights in detail: Everyone has the right—(a) to an environment that is not harmful to their health or wellbeing; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

(g) International conventions on the Environment.

Again these are rarely of direct application in national courts. However again they provide statements of principle which may be useful

Example: The Ramsar Convention on wetlands provides the framework for national action and international cooperation for the conservation and wise use of wetlands and their resources

Example: CITES which regulates trade in certain endangered species

Example: The Paris Agreement spells out the duties of governments in relation to Climate Change

 

(h) National, regional or international human rights instruments or treaties.

These can provide important rights

Example: the rights in Articles 11 and 12 of ICESCR  to adequate standards of living, family life and health may be invoked in environmental cases.

However caution is needed when relying on them as they often given no rights to individuals which can be enforced by them.  Also there are many useful documents or material which may not strictly speaking be laws which apply, but which can help with a case, especially by providing illustrations or examples of what is or is not acceptable practice

Example: the United Nations Declaration on the Rights of Indigenous Peoples, especially Articles 10, 11, 19, 28, 29 and 32 on the right to free prior and informed consent.  

 

(i) National or international Codes of practice to which businesses in certain trades may sign up

These are not sources of law but may be used in legal cases to establish what may be considered reasonable/unreasonable or acceptable/unacceptable conduct or practice

Example the Round Table on Sustainable Palm Oil

Example: FSC (Forest Stewardship Council) Certification

(j) Statements by companies in their corporate reports or their websites.

Again these are not sources of law as such, but may be used in legal actions. Often these make ambitious claims as to how socially responsible the companies are, which fall far short of the reality

Example: Greenpeace’s “Dirty Bankers” report challenged HSBC for violating its own declared lending policies. Within a month of its publication, HSBC revised its policies. Six months later it asked the Roundtable on Sustainable Palm Oil to investigate one of the companies it had previously funded.

 

(k) Principles of international law

These again are rarely directly applicable but may be useful.

Example: The no-harm rule is a widely recognised principle of customary international law whereby a State is duty-bound to prevent, reduce and control the risk of environmental harm to other states

Example: Principle 15 of the 1992 Rio Declaration states:
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation

 

(l) Other statements of principle on Human Rights

These are not sources of law but may be used in legal cases to establish what may be considered reasonable/unreasonable or acceptable/unacceptable conduct or practice. Whether domestic judges realise it or not, the International Court of Justice recognizes that teachings of leading international jurists are relevant sources of international law. (ICJ Statute Article 38(1)(d)).

Example: Guiding Principles on Business and Human Rights

Example: Oslo Principles on Global Climate Change

Example: The Precautionary Principle

Example: The No-Harm Principle

5

Other topics to be covered

The scope of this section of the website will be expanded, as resources allow to cover the following topics

 

  1. Types of environmental harm of damage
    1. Land based
      1. General
      2. Forests
      3. Parks and protected areas
      4. Habitats of specific species
    2. Water
      1. General
      2. Rivers and lakes
      3. Wetlands
      4. Coastal areas/mangroves
      5. Oceans
    3. Air
    4. Other
      1. Ecosystems
  2. Mining, drilling and extractive industries (including pipelines issues)
  3. Industry generally, manufacturing and processing, power generation
  4. Infrastructure projects generally
  5. Waste
  6. Transport
    1. Road transport
    2. Shipping
    3. Aircraft
  7. Other
    1. Fishing
  8. Other practical points
    1. Accessing Information on the environment
    2. Participating in environmental decision making
    3. Access to Justice in environmental cases
    4. Non-judicial remedies
    5. Checklist of points when considering/bringing a case [X-ref to going to court]
  9. Sources of further help

 

 

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