Article: International Environmental Laws and Human Rights Issues

Each year more than 2 million people are succumbed to death due to infections that ascribed to contamination. Everywhere throughout the world, the negative impact of environmental degradation have made people suffer miserably and no one is safe from these effects. The impact varies in shape and intensity and can be found in shape of ecological debasement, water shortage, depleted fisheries, common calamities because of deforestation and perilous administration. Indigenous people groups directly experience the ill effects of the degradation of the ecosystem systems because these people mostly depend upon these systems for earning their bread and butter. Environmental change is intensifying a large number of these negative impacts of environmental degradation on human wellbeing and prosperity. This has turned into escalation in the extreme events. These facts show the link between environment and human rights. Human rights issues have directly been associated with the legislation done on environment throughout the world at the International level. A report for the Office of the High Commissioner on Human Rights stresses the key point that “while the universal human rights treaties do not refer to a specific right to a safe and healthy environment, the United Nations human rights treaty bodies all recognize the intrinsic link between the environment and the realization of a range of human rights, such as the right to life, to health, to food, to water, and to housing.”[1]

Substantive Rights

International law divides human rights with respect to environment into substantive and procedural rights. The substantive human rights consist of political and civil rights such as the rights to life, religion, property, health, water, food, and culture. An extensive amount of legislation has been done in order to protect substantive human rights related to the environment. The purpose of environmental laws enacted by international organizations is to protect the collective rights of human beings and their future generations. So there is a strong relationship between environmental laws and substantive human rights.

The link between the environmental laws and basic human rights issues has been explained and recognized in multilateral environmental treaties. The phenomenon of environmental degradation has also been recognized as a factor impacting the substantive human rights and environmental rights. Whenever there is any human rights violation caused by environmental factors, Human rights tribunals have come up to safeguard and recognize rights of life, property, health, and a healthy environment. At regional level the “right to a healthy environment” has been recognized by courts and tribunals, such as in the cases decided by the African Commission on Human and Peoples Rights based on Article 24 of the African Charter, which states that all peoples have the right to a general satisfactory environment.[2]

Procedural Rights

Procedural rights consist of rights to have access to information, right to participate in decision-making, and right to access to justice. These rights can be found in both the environmental as well as human rights instruments as they provide safeguards to the human as well as environmental rights and also protect the natural environment. Principle 10 of the Rio Declaration is quite relevant as it focuses on the procedural rights in environmental context. According to this principle “Environmental issues are best handled with participation of all concerned citizens at the relevant level.” It lays down that individuals should have appropriate access to information, the ability to participate in decision-making processes, and effective access to judicial and administrative proceedings, including redress and remedy.

Despite of its regional status, the Aarhus Convention[3] is one of the most relevant international treaties that talks about protection of procedural human rights. Its preamble declares the right of everyone to live in an environment adequate to his or her health and well-being. Its Article 1 ensures that rights of access to information, public participation and access to justice are protected.

Arhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters has been adopted by the UNECE. Its preamble not only recalls Principle 1 of the Stockholm Declaration and recognises that ‘adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself’ but also asserts that ‘every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations’. Kofi Annan has remarked that although regional in scope, the significance of the Aarhus Convention is global. It is the most ambitious venture in the area of “environmental democracy” so far undertaken under the auspices of the United Nations.

Procedural rights have also been recognized in regional and global human rights instruments such as the Inter-American Court of Human Rights, which recognized the right of access to information in an environmental context in connection with the right to freedom of expression provided in Article 13 of the American Convention of Human Rights.[4] Similarly, the European Court of Justice has ruled that lengthy administrative proceedings to pursue an environmental right are in violation of the Article 6 right to fair hearing.[5] The World Bank Inspection Panel has ruled that the environmental impact assessment is a special form of procedural protection, unique to environmental law, which has been linked to the rights to information and public participation. An identical mechanism has been provided for in the UN Convention on the Law of the Sea and the Convention on Biological Diversity, as well as human rights agreements such as the ILO Convention 169 concerning Indigenous and Tribal Peoples. The UNECE Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) also addressed the procedural requirements of environmental impact assessments. According to the African Commission on Human and Peoples Rights failure to conduct an environmental impact assessment can contribute to a violation of the right to property.[6] Similarly, the European Court of Human Rights ruled that failure to conduct an environmental impact assessment contributed to a violation of the right to respect for privacy and home life.[7]

The relationship between human rights and environmental protection laws is threefold:

  1. The environment is necessary a precondition for the enjoyment of human rights so the states must ensure the level of environmental protection necessary to allow the full exercise of protected rights;
  2. Procedural rights, especially access to information, participation in decision-making, and access to justice in environmental matters, are considered essential to good environmental decision-making; and
  • The right to a safe, healthy and ecologically-balanced environment is a human right in itself.

The Stockholm Declaration and the Rio Declaration demonstrate an important link between human rights and the environment. The Commission on Human Rights by Resolution 2005/60 requested the High Commissioner and invited UNEP, UNDP and other relevant bodies and organizations “to continue to coordinate their efforts in activities relating to human rights and the environment in poverty eradication, post-conflict environmental assessment and rehabilitation, disaster prevention, post-disaster assessment and rehabilitation, to take into consideration in their work relevant findings and recommendations of others and to avoid duplication”.

The Human Rights Council in its resolution 7/23 of March 2008 and resolution 10/4 of March 2009 were adopted primarily for reiterating the stance on human rights and climate change. Awareness has been created with these resolutions regarding environmental affects on the human rights.

United Nations through its various organs has taken steps to address issues related to human rights which are directly emanating from the environmental hazards and the environmental legislation. UN Human Rights Committee has adopted General Comments 14 and 15, which interpret Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to include access to sufficient, safe, and affordable water for domestic uses and sanitation; the prevention and reduction of exposure to harmful substances including radiation and chemicals, or other detrimental environmental conditions that directly or indirectly impact upon human health. Moreover, Article 10 of UN Watercourses Convention puts ‘vital human needs’ in priority while distributing and allocating scarce water resources.[8]

In its Resolution 10/4 (2009) on the climate change, the UNHR stated “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”.[9]

Transboundary Pollution and Global Warming

Generally, the main obligation that the International human rights treaties put on member states is that these states protect certain freedoms and fundamental rights of everyone living within their territory or is subject to their jurisdiction. However, in certain conditions states must also respect human rights in other countries when activities within their own territories or jurisdiction affect the enjoyment of human rights extraterritorially. For example in case of Transboundary pollution or global climate change, the concerned states must also realise that the impact of their activities is making a strong impact on the people living outside their territories. States have a duty in general international law to exercise due diligence over activities within their own territory that may cause significant harm to other states or areas beyond national jurisdiction, including the global environment. Under International Law, failure by a state to regulate or control environmental nuisances or to protect the environment may interfere with individual rights.

In cases such as Guerra, Lopez Ostra, Öneryildiz, Taskin, Fadeyeva, Budayaeva and Tatar it has been demonstrated how the right to private life, or the right to life, can be used to compel governments to regulate environmental risks, enforce environmental laws, or disclose information.[10]

Right to have quality Environment and  conflicting International cases

There are conflicting views in different international case laws on whether right to have quality environment falls under the category of human rights.

Kyrtatos v. Greece

Even till today human rights treaties do not give full guarantee of giving a right to have a decent environment. The ECtHR observed in Kyrtatos, that “neither Article 8 nor any of the other articles of the Convention are specifically designed to provide general protection of the environment as such.”[11] This case involved the illegal draining of a wetland in which the European Court observed that no violation of applicants’ right to private life or enjoyment of property was committed because of destruction of the area in question and they were not entitled to live in any particular environment, or to have the surrounding environment indefinitely preserved.

Metropolitan Nature Reserve v. Panama

The Inter American Commission on Human Rights also gave a similar decision and ejected a claim on behalf of all the citizens of Panama to protect a nature reserve from development.[12] Rodrigo Noriega filed a petition on behalf of the citizens of Panama in which he alleged that the right to property of all Panamanians has been violated. He alleged that those who were mainly affected included groups such as the Residents of Panama, Friends of the Metropolitan Nature Reserve, the Audubon Society of Panama, United Civic Associations, and the Association for the Research and Protection of Panamanian Species. The Commission, however, rejected the petition for being inadmissible on the grounds that there was no specifically identifiable victim or defined individual. The Commission therefore ruled that it did not have the requisite competence to adjudicate the present matter.

Brun v. France

In another case relating to the objections against growing genetically modified crops, the UN Human Rights Committee held that ‘no person may, in theoretical terms and by actio popularis, object to a law or practice which he holds to be at variance with the Covenant.[13]

The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria

Ogoniland decision is a unique decision in the history of environmental law and human rights instruments. For the very first time ever, it applied the right of peoples to dispose freely of their own natural resources. In 1996, the Social and Economic Rights Action Centre (SERAC) brought a case against Nigeria to the African Commission on Human and Peoples’ Rights alleging that the military government had, through its business relationship with Shell Petroleum Development Corporation (SPDC), exploited oil reserves in Ogoniland with no regard for the health or environment of the Ogoni People. This exploitation had resulted in extensive pollution of the local habitat, seriously affecting the food production of the area. The Commission found, in a 2001 decision on the merits, that Nigeria had violated many of the rights enshrined in the African Charter on Human and Peoples’ Rights (Arts. 2, 4, 14, 16, 18(1), 21 and 24) and appealed to the state of Nigeria to cease its attacks on the Ogoni people, undertake effective investigations into the human rights violations detailed in the case, assure reparations for the victims, and put safeguards in place safeguards to prevent future violations.

State Responsibility: A moral duty of states

Every state has a responsibility to protect environment under the International Law, however, this responsibility is moral and not all states fulfil it. Two major areas in which state responsibility comes into play are environmental pollution and natural resource extraction. The European Court of Human Rights has ruled a number of cases involving pollution, including life and health risks from industrial and dangerous activities. In the same way, the African Commission on Human Rights has remained upfront in addressing pollution resulting from oil exploitation.

Under International law, As soon as it come into the knowledge of a state that there is some environmental risk involved in a particular activity, it becomes duty bound to adopt positive measures of protection through effective regulation, in order to prevent infringements of individual rights. Not only this but states must anticipate potential risks associated with industrial activities and this can be done by conducting environmental impact assessment (EIA). States must make sure that the constitutional and fundamental rights of their citizens related to environment are effectively enforced through courts.

There should be regulations and mechanisms enforced to deal with licensing, setting up, operation, security, scientific monitoring and supervision of the industrial activities in a state’s territory. These regulations should be backed by deterrence and sanctions. In short, the State must recognize the legal personality of indigenous and tribal peoples and their title to lands and territories traditionally owned or used by them. In these lands and territories, the government owes a duty to consult regarding development and investment projects and in certain instances to obtain prior informed consent (PIC). In other words, while the government retains the ability to impose restrictions on the right to property, in order to ensure the survival of the group, the State must comply with certain safeguards, including prior and independent environmental impact assessments, consultations, PIC and benefit-sharing arrangements. Concessions or permits granted for the exploitation of natural resources in breach of these duties should be linked with the international responsibility of the State.

International Environmental Treaties and Human rights

At the international scene, there is always a continuous tension between those who support national sovereignty over natural resources and those who compel states to take measures to protect the global environment. Principle 21 of the 1972 Stockholm Declaration (United Nations, 1972) provides that States have the sovereign right to exploit their own resources but also have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of their national jurisdiction. Some international environmental instruments also recognize certain elements environment to be the common heritage of humankind. UNCLOS and the World Heritage Convention adopted this concept as “common heritage of mankind” and “world heritage of mankind as a whole”, which is related to “common interest of mankind” as declared in the Outer Space Treaty and the “common concern of humankind” as stipulated in the United Nations Framework Convention on Climate Change. All these international treaties further the purpose of protection of environment.

Antarctic Treaty System

As a measure to protect the echo system of Antarctica, the Antarctic Treaty was adopted in 1959 and entered into force in 1961. This treaty prohibits every member state from claiming territorial sovereignty over any part of Antarctica. It also makes state bund to cooperate and share their scientific plans and research.

Since the adoption of this treaty the International community has agreed upon various related agreements also known as the “Antarctic treaty system”. This system consists of the 1972 Convention for the Conservation of Antarctic Seals, the 1980 Convention on the Conservation of Antarctic Marine Living Resources; the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities; and the 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol).

International Convention on Civil Liability for Oil Pollution Damage

Adopted by the International Maritime Organization in 1969, and entered into force in 1975, the international Convention on Civil Liability for Oil Pollution Damage stipulates that if an incident occurs with a ship carrying oil, which causes pollution, the owner of that ship shall be liable to pay compensation to those affected by the oil. This liability is set as absolute liability under which the owner shall be liable even if he does not have any fault in causing pollution damage.

This Convention was further amended by the Protocol of 1992 thereby widening its scope to include damage in a Party’s Exclusive Economic Zone or equivalent area, as well as in a Party’s territorial seas (Article 3(a)). However, according to Article XI of the Convention, the Convention and the Protocol do not allow for compensation if the ship responsible for the spill was owned or operated by a State and used only for non-commercial purposes.

Ramsar Convention on Wetlands of International Importance

The Ramsar Convention was adopted in February 1971, and entered into force in December 1975. Major purpose of this convention is to protect the world’s wetlands, through the identification and designation of wetlands of international importance, and the creation of parks and reserves around important wetlands, both designated and undesignated. According to its Preamble, the Convention recognizes “the interdependence of man and his environment”. The Preamble also acknowledges wetlands as “a resource of great economic, cultural, scientific, and recreational value, the loss of which would be irreparable.”

Convention for the Protection of World Cultural and Natural Heritage

The World Heritage Convention was adopted by the General Conference of UNESCO in November of 1972. The Preamble of the Convention recognizes that “deterioration or disappearance of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world.” in addition, it states that “parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole.”

According to Article 2 of the Convention “natural heritage” can be defined as “natural features consisting of physical and biological information or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiological formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.” There are two main mechanism for protecting the natural heritage under the Convention are namely the World Heritage List and the List of World Heritage in Danger.

Convention on International trade in Endangered Species of Wild Fauna and Flora

The Convention on international Trade in Endangered Species of Wild Fauna and Flora (CITES) is an international treaty designed to ensure that international trade in wild animals and plants is carried out in a sustainable way so as not to threaten their survival. CITES currently protects approximately 33,000 species.

United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS) was entered into force on November 16, 1994. Its Article 192 provides “States have the obligation to protect and preserve the marine environment”. It further explains in its Article 194 “states shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as to not cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention”. Further, Article 207 stipulates that states should adopt laws to “prevent, reduce and control pollution of the marine environment from land-based sources”. These clear substantive obligations to protect the environment are backed by procedural mechanisms.

Part XI of the Convention declares the seabed and its resources to be “the common heritage of mankind”. The Convention further provides that “no state shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources” and that “all rights in the resources of the Area are vested in mankind as a whole”.

Vienna Convention for the Protection of the Ozone Layer

The Vienna Convention for the Protection of the Ozone Layer (the Ozone Convention) was adopted in 1985 and entered into force in 1988. Main goal of the Convention is “to protect human health and the environment against adverse effects resulting from modifications of the ozone layer”. Article 2 provides that Parties shall take measures “to protect human health and the environment” from the effects of anthropogenic ozone degradation.

Montreal Protocol on Substances that Deplete the Ozone Layer

The Protocol on Substances that Deplete the Ozone Layer to the Vienna Convention for the Protection of the Ozone Layer (Montreal Protocol) requires states to phase out the production of numerous substances believed to be responsible for ozone depletion to protect the ozone layer. The Protocol further recognizes the connection between environmental conservation and human health. The Preamble recognizes “that world-wide emissions of certain substances can significantly deplete and otherwise modify the ozone layer in a manner that is likely to result in adverse effects on human health and the environment.”

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal

The Basel Convention was adopted in 1989 and entered into force in 1992. It was enacted for regulating the movement of hazardous wastes from one state to another. Its Preamble talks about reducing the risks involved in transboundary movement of hazardous wastes and also pledges to reduce the production of such wastes. Under this Convention a system of rights and obligations was created. Under Article 4(1)(a) parties have a right to prohibit the import of hazardous wastes and an obligation to inform other Parties when they choose to exercise this right.

Moreover, Article 4(2)(a)-(b) directs the Parties to take appropriate measures to ensure that hazardous and other waste production be reduced to a minimum and that States parties ensure adequate disposal facilities are available. Article 4(3) of makes illegal trade in hazardous and other wastes a crime.

Later in the year 1999 a Protocol on Liability and Compensation was adopted by the Basel Conference of the Parties. This Protocol was meant to create a mechanism to award compensation in the event when some damage is caused by the transboundary movement of wastes.

United Nations Framework Convention on Climate Change, 1992

The UN Framework Convention on Climate Change (UNFCCC) was  adopted  in  May  1992. According to Article 2 of the UNFCCC, the goal of the UNFCCC is to achieve stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. The UNFCCC contains provisions relating to the concept of common concern of humankind, the principle of common but differentiated responsibilities, the relationship between climate change and human welfare, the relationship between state sovereignty and environmental obligations,  and  the  existence  of  obligations  to  future  generations.

The scheme of interests and obligations laid out in the UNFCCC confronts issues of sovereignty. The Preamble reaffirms “the principle of sovereignty of States in international cooperation to address climate change.” The Preamble also provides that “States have . . . the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” This statement is a clear reference to Principle 21 of the Stockholm Declaration. However, the Preamble to the UNFCCC begins with  an acknowledgment that “change in the Earth’s climate and its adverse effects are a common concern of humankind.” This goes beyond Principle 21, in imposing an obligation not only on other States, but on humankind as a whole.

The UNFCCC also recognizes the relationship between climate degradation and human welfare. The Preamble states a concern that the warming caused by anthropogenic emissions “may adversely affect natural ecosystems and humankind.” Article 2 states that stabilization of greenhouse gas concentrations in the atmosphere should be achieved within a time frame sufficient “to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.” in addition to the effect of climate change on economic development, the Convention recognizes that “economic development is essential for adopting measures to address climate change” (Article 3(4)).

Finally, the UNFCCC contains procedural obligations to individuals as well as to other parties. Article 4(1)(i) requires Parties to promote and cooperate in education, training and public awareness of climate change, and encourage participation in the process, including participation by NGOs.

Kyoto Protocol to the United Nations Framework Convention on Climate Change

The Kyoto Protocol was adopted in Kyoto in December 1997 and opened for signature in March 1998. it entered into force in February 2005. The Kyoto Protocol commits thirty-seven industrialized countries and the European Community to reduce greenhouse gas emissions by an average of five percent compared to 1990 levels over the five-year period 2008-2012.

Article 10 of the Protocol places a heavier burden on developed nations under the principle of “common but differentiated responsibilities”. It thus specifically recognizes the national and regional development priorities of developing nations and makes reference to the objective of sustainable development.

United Nations Convention on Biological Diversity

The Convention on Biological Diversity (CBD) was opened for signature at the Rio de Janeiro Earth Summit in June 1992 and entered into force in December 1993. The three main goals of the Convention include the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.

The Preamble of the CBD affirms that “the conservation of biological diversity is a common concern of humankind.” Article 3 restates the principle that States have “the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” Several other parts of the Convention echo this interaction between sovereign rights and international responsibility. The Preamble reaffirms that States have “sovereign rights over their own biological resources”, and goes on to reaffirm “also that States are responsible for conserving their biological diversity and for using their biological resources in a sustainable manner.” Notably, this responsibility goes beyond a responsibility to prevent harm to the environment of other States or of areas beyond the limits of national jurisdiction. Article 4 specifically states that the Convention applies in areas within the limits of each Contracting Party’s national jurisdiction. Article 8 establishes obligations for in-situ conservation, including obligations to establish a system of protected areas and to regulate important biological resources.

As per Article 10(c), there are also special protections for indigenous groups. States have a responsibility to “protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements”.

 

United Nations Convention to combat Desertification in those countries experiencing drought and/or desertification, particularly in Africa

The UN Convention to Combat Desertification (UNCCD) was adopted in Paris in June 1994. The goal of this convention is to combat desertification and mitigate the effects of drought through long-term action supported by international cooperation and partnerships. The Preamble begins by affirming “that human beings in affected or threatened areas are at the centre of concerns to combat desertification and mitigate the effects of drought.” it goes on to acknowledge that arid, semi-arid, and dry sub-human areas “are the habitat and source of livelihood for a large segment of [Earth’s] population” and that “desertification and drought affect sustainable development through their interrelationships with important social problems such as poverty, poor health and nutrition, lack of food security, and those arising from migration, displacement of persons and demographic dynamics.”

The Preamble further stipulates that “states have . . . the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

It appeals that local people must participate and implement the programs related to combat desertification. For this purpose information should be exchanged among local communities.

IAEA Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management

This Convention is the foremost legal instrument that directly addresses the safety of spent fuel and radioactive waste management on a global scale. The primary aim of this instrument is to maintain a high level of safety in this industry worldwide. Its Preamble underscores the importance of creating awareness among masses regarding the safety and fuel management or radioactive waste management facility.

Stockholm Convention on Persistent Organic Pollutants

The main objective of the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention) is to shield human wellbeing and the earth from persistent natural toxins by confining and finally dispensing with their generation, use, exchange, discharge and storage.

The Convention requires every Party, to the degree it is fit, to advance and encourage providing the general population with all accessible data on tenacious natural toxins and guarantee that the general population has admittance to open data and that the data is updated. Under Article 9(5), secret data ought to be secured, yet data on wellbeing and security of people and the environment may not be kept private.

Article 25 “prohibits discrimination against indigenous peoples,” and “promotes their full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development.” Article 26 also provides that indigenous peoples “have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.” Under Article 29, the Declaration provides that “indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources”, and that “States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent.”

Article 25 “forbids victimization of indigenous people,” and “advances their full and successful investment in all matters that worry them and their entitlement to stay particular and to seek after their own particular dreams of financial and social improvement.” Article 26 likewise provides that indigenous people groups “have the privilege to the terrains, domains and assets which they have generally possessed, involved or generally utilized or obtained.”

Author: DR.HEMANT GARG & DR. BASANT GARG

[1] Report of the OHCHR on the relationship between climate change and human rights (2009)

[2] Social and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria (African Commission on Human and Peoples’ Rights 2002)

[3] UNECE Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters 1998

[4] Claude-Reyes v. Chile No. 151 (Inter-Am. Ct. Sep. 19, 2006)

[5] Dées v. Hungary No. 2345/06 (Eur. Ct. H.R. App. Nov. 9, 2010)

[6] Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya No, 276/2003 (African Commission on Human and Peoples’ Rights 2003)

[7] Giacomelli v. Italy No. 59909/00 (Eur. Ct. H.R. 2006)

[8] GAOR, Report of the 6th Committee Working Group (1997)

[9]UNHRC, Resolution, available at http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_10_4.pdf

[10] Lopez Ostra v. Spain 20, at 277 (EHRR, 1994); Guerra v. Italy 26 at 357 (EHRR, 1998)

[11] Kyrtatos v. Greece  No. 242 (ECHR, 2003)

[12] Metropolitan Nature Reserve v. Panama No. 11.533, Report No. 88/03, Inter-A. C.H.R., OEAA/Ser.L/V/II.118 Doc. 70 rev. 2 at 524 (2003)

[13] Andre Brun v France, Communication No. 1453/2006, U.N. Doc CCPR/C/88/D/1453/2006 (2006)