Transcript 气候变迁与WTO:以哥本哈根协议为中心

Yao-Ming Hsu
Associate Professor, College of Law
National Cheng-Chi University, Taiwan
July 4th, 2014
12th IUCNAEL Colloquium 2014
Emergence
Reformulation
of ER
of ER
Formulation
of ER
New Impacts
of CC
Codification
of ER
Proper
Reponses
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Introduction
I. Emergence of Environmental Rights (ER)
A. Environmental Impacts and Formulation
of ER
B. Codifications of ER in multi-governance
levels
II. Reformulation of Environmental Rights
A. New Impacts from Climate Change
B. Responses for creating New ER
Conclusion
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Nature of ER
Needs for New ER
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International Human Rights Movement after
WW II
International Human Rights Instruments
International Environmental Concerns since
the 70’s in last century
National, supranational and international
codifications of ER
Nature of ER? Individual right? Group right?
Remedies for infringements of ER?
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Right to •Norms
•Practices
Life
Right to •Norms
Health •Practices
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Art.3 of Universal Declaration of Human
Rights: “Everyone has the right to life, liberty
and security of person”.
Negative effects-states should prevent
interferences.
Positive effects—states’ protection
obligations
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Art.6.1 of International Convenant on Civil and
Political Rights :”Every human being has the
inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his
life”.
General Comment No. 6, the UN Human Rights
Committee-- The expression “inherent right to
life” cannot properly be understood in a
restrictive manner, and the protection of this
right requires that states adopt positive
measures.(item 5, UN Doc/A/37/40, 30 April
1982)
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1972 Stockholm Declaration
Principle 1-- Man has the fundamental right to
freedom, equality and adequate conditions of
life, in an environment of a quality that permits a
life of dignity and well-being, and he bears a
solemn responsibility to protect and improve the
environment for present and future generations.
 1992 Rio Declaration
Principle 1--Human beings are at the centre of
concerns for sustainable development. They are
entitled to a healthy and productive life in
harmony with nature.
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International Covenant on Economic, Social and Cultural
Rights, art. 12.1—”The States Parties to the present
Covenant recognize the right of everyone to the enjoyment
of the highest attainable standard of physical and mental
health.”
The Committee on Economic, Social and Cultural Rights,
General Comment No. 14, The right to the highest
attainable standard of health, Un. Doc. E/C.12/2000/4 11
August 2000, paras. 1 and 3, 59-- the substantive content
of this right includes timely and appropriate health care,
access to safe and potable water, adequate sanitation, an
adequate supply of safe food, nutrition and housing,
healthy occupational and environmental conditions, and
access to health-related education and information.
--that victims of violations of the right to health should
have access to remedies at both national and international
levels and should be entitled to adequate reparation.
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1989 the United Nations Convention on the Rights of the
Child
Art.24.1:
“States Parties recognize the right of the child to the
enjoyment of the highest attainable standard of health and
to facilities for the treatment of illness and rehabilitation
of health. States Parties shall strive to ensure that no child
is deprived of his or her right of access to such health care
services.”
Art.24.2.(c):
“To combat disease and malnutrition, including within the
framework of primary health care, through, inter alia, the
application of readily available technology and through the
provision of adequate nutritious foods and clean drinkingwater, taking into consideration the dangers and risks of
environmental pollution.”
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1992 UNFCCC
Art.1(1)
“Adverse effects of climate change” means
changes in the physical environment or biota
resulting from climate change which have
significant deleterious effects on the
composition, resilience or productivity of
natural and managed ecosystems or on the
operation of socio-economic systems or on
human health and welfare.
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Individual
right?
Group
right?
•Identification
•Causation
•Not sufficient for ER
•Qualification of
complainant
•Causation
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Ubi ius, ibi remedium.
Rio Declaration, principle 10: “Effective access to
judicial and administrative proceedings, including
redress and remedy, shall be provided.”
Aarhus Convention, art.9.1
“Each Party shall, within the framework of its national
legislation, ensure that any person who considers that
his or her request for information under article 4 has
been ignored, wrongfully refused, whether in part or in
full, inadequately answered, or otherwise not dealt with
in accordance with the provisions of that article, has
access to a review procedure before a court of law or
another independent and impartial body established by
law.” ---just remedy for right to information
Substantial remedies for environmental rights?
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IPCC 4th AR (2007)
 Severity of droughts
 Land degradation
 Desertification
 Intensity of floods, tropical cyclones
 Incidence of malaria
 Heat-related mortality
 Decreasing crop yield & food security
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Timo Koivurova, Sébastien Duyck, Leena Heinämäki,
CLIMATE CHANGE AND HUMAN RIGHTS, 21 IUS
Gentium 287 (2013)
Alan Boyle, Human Rights and the Environment:
Where Next? 23(3) EJIL 613 (2012)
Siobhán McInerney-Lankford, Mac Darrow, and
Lavanya Rajamani, Human Rights and Climate
Change: A Review of the International Legal
Dimensions (Washington, DC: The World Bank Study,
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2011)
Philippe Sands, Rethinking Environmental RightsClimate Change, Conservation and the European
Court of Justice, 20 Environmental Law &
Management 117 (2008).
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Formulation
Codification
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Environmental
Impacts and
Formulation of ER
Codifications of
ER in multigovernance levels
•1972 Stockholm Declaration
•1992 Rio Declaration
•ECHR
•IACHR
•African Charter ob Human and Peoples’ Right
•French Constitution 2004 Charter of the
Environment
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1972 Stockholm Declaration
1992 Rio Declaration
1992 UNFCCC
….etc
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April 2011 Human Rights Council Resolution
A/HRC/RES/16/2
In this resolution, the Human Rights Council decides
“to extend the mandate of the current mandate
holder as a special rapporteur on the human right to
safe drinking water and sanitation for a period of
three years” and “Encourages the Special Rapporteur,
in fulfilling his or her mandate… to promote the full
realization of the human right to safe drinking water
and sanitation by, inter alia, continuing to give
particular emphasis to practical solutions with regard
to its implementation, in particular in the context of
country missions, and following the criteria of
availability, quality, physical accessibility, affordability
and acceptability”.
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UN Human Rights Council, Resolution 10/4, 25
March 2009
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“Noting that climate change-related impacts have
a range of implications, both direct and indirect,
for the effective enjoyment of human rights
including, inter alia, the right to life, the right to
adequate food, the right to the highest attainable
standard of health, the right to adequate
housing, the right to self-determination and
human rights obligations related to access to
safe drinking water and sanitation, and recalling
that in no case may a people be deprived of its
own means of subsistence”.
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EU Lisbon Treaty / TEU/TFEU
TEU, art.3.3
The Union shall establish an internal market. It shall work for the
sustainable development of Europe based on balanced economic
growth and price stability, a highly competitive social market
economy, aiming at full employment and social progress, and a
high level of protection and improvement of the quality of the
environment.
TFEU, art.191.1
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Union policy on the environment shall contribute to pursuit of
the following objectives:
— preserving, protecting and improving the quality of the
environment,
— protecting human health,
— prudent and rational utilisation of natural resources,
— promoting measures at international level to deal with regional
or worldwide environmental problems, and in particular
combating climate change. (newly added)
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ECHR
Art.2.1: “Everyone’s right to life shall be
protected by law”.
Art.8.1: “Everyone has the right to respect for
his private and family life, his home and his
correspondence”—environmental
interferences causing health-related
problems
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ECtHR--Many Cases for the past 25 yrs ago.
 Insufficiency
 Reasons:
1. just for negative impacts on an individual’s
rights
2. procedurally, there’s no public interest
proceedings.
ECJ--Ex. Greenpeace v. European Commission
(case c-321/95 P, objecting new coal-fired
power plants): applicants should show how they
are “individually and directly concerned” by the
measure.
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1998 Aarhus Convention Access to
Information, Public Participation in Decisionmaking and Access to Justice in
Environmental Matters
1.Human right of access to justice
2. confers rights on individuals
3.essential elements have been incorporated
to ECHR jurisprudences.
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New Impacts
Responses
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Procedural Rights:
proceduralization of environmental right
1998 Aarhus Convention
Public participation, right to information & Right
to Judicial Remedies: already guaranteed.
Substantial Rights:
Right to life?
Right to Health?
Other Possibilities?
--Environmental Right per se?
--a right to a decent environment?
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IPCC AR
2005 Inuit Petition
2009 UN/OHCHR Report
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Claims:
 the impact of climate change caused by acts
and omissions of the United States, violates
the Inuit's fundamental human rights
,such as the rights to the benefits of culture,
to property, to the preservation of health, life,
physical integrity, security and a means of
subsistence, and to residence, movement,
and inviolability of the home.
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The Inter-American Commission on Human
Rights has clearly recognized that
environmental interference with indigenous
peoples' lands may lead to the infringement
of their human rights
On November 16, 2006, the Commission
rejected the Inuit petition, stating that “the
information provided does not enable us to
determine whether the alleged facts would
tend to characterize a violation of rights
protected by the American Declaration.”
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A number of observed and projected effects of climate
change will pose direct and indirect threats to human lives.
IPCC ... projects with high confidence an increase in
people suffering from death, disease and injury from heat
waves, floods, storms, fires and droughts. Equally, climate
change will affect the right to life through an increase in
hunger and malnutrition and related disorders impacting
on child growth and development, cardio-respiratory
morbidity and mortality related to ground-level ozone.
Climate change will exacerbate weather-related disasters
which already have devastating effects on people and their
enjoyment of the right to life, particularly in the
developing world. For example, an estimated 262 million
people were affected by climate disasters annually from
2000 to 2004, of whom over 98 per cent live in developing
countries.
(United Nations Human Rights Council (HRC) Resolution
10/4, Human Rights and Climate Change, UN Doc.
A/HRC/10/L.11, 12 May 2009)
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UN HRC, Report of the OHCHR on the
Relationship Between Climate Change and Human
Rights, UN Doc. A/HRC/10/61, 15 Jan. 2009
Para.70--While climate change has obvious
implications for the enjoyment of human rights,
it is less obvious whether, and to what extent,
such effects can be qualified as human rights
violations in a strict legal sense
Para.91-- human rights litigation is not wellsuited to promote precautionary measures based
on risk assessments, unless such risks pose an
imminent threat to the human rights of specific
individuals.
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Skepticism for creating new rights
 Advocacy (Alan Boyle, 2012)
1.environment as a public good
2.with the context of economic, social and
cultural rights through the right to water,
food and environmental hygiene.
---Derived from sustainable development for
reconciling the economic development and
environmental protection?
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Legal standings? (Christopher Stone, 1972;
Philippe Sands, 2008)
Actionable?
Collective rights/ citizens’ suits
--Francesco Francioni (2010); collectivesocial dimension of HR
ex. 2007 UN Declaration on the Rights of
Indigenous People
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Traditional right to life, health, private and
family life –still an approach for individual
rights.
Recognition of collective dimension of rights
Ex. UN committee on ESC rights, general
comment no.15, right to water.
EX. NAFTA Arbitration Glamis Gold v. US
(2009), using the justification of conservation
of life and culture of native tribes for denying
the authorization of Canadian gold mining.
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Art.24—”All peoples shall have the right to a general
satisfactory environment favorable to their
development”.
Ogoniland Case 2001--the local population
complained of the environmental devastation caused
by the oil extraction industry in Nigeria
the African Commission on Human and People' Rights
construed the generic language of Article 24 of the
Charter, said: “an environment degraded by pollution
and defaced by the destruction of all beauty and
variety is as contrary to satisfactory living conditions
and development as the breakdown of the
fundamental ecological equilibrium is harmful to
physical and moral health.”
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Mayagma Sumo Awas Tigni Community v.
Nicaragua Case (2001)
the Inter-American Court held that logging
concessions awarded by Nicaragua to private
investors in an area claimed by a tribal
community constituted a violation of the
petitioners' property rights guaranteed by Article
21 of the American Convention.
Art.21--Everyone has the right to the use and
enjoyment of his property. The law may
subordinate such use and enjoyment to the
interest of society
Collective Rights for indigenous people?
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the case law of the Human Rights Committee
reveals instances of bold adherence to a public
interest approach in the construction of human
rights in light of environmental considerations
Ex. Francis Hopu and Tepoaitu Bessert v. France
(Communication No. 549/1993)
the Committee upheld the petitioners' contention
that a tourist development project in Polynesia
involved an unacceptable impact on traditional
tribal lands, including sacred burial grounds of
the indigenous community.
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Majority (5-4)-A state has a particular
interest (Massachusetts)
Other NGOs V
Dissenting opinions by Chief Justice John
Roberts, “the very concept of global warming
seems inconsistent with this particularization
requirements”.—applicant will not be able to
meet the test of particularized injury.
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Fragmentations
Confluence
Environmental Right per se
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Human Rights
Climate
Change
Environmental
Protection
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UDHR
ICCPR
ICESCR
UNFCCC
Rio Declaration
Aarhus
Convention
New
collective
ER?
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Definition
Legal Instruments
Judicial Promotion
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Yao-Ming Hsu
Email: [email protected]