This report highlights some of the major developments during 2016 with a particular emphasis on the relevant UN bodies. Furthermore, it introduces a few of the most important examples of environmental human rights cases in the human rights monitoring bodies. The report, however, is by no means an exhaustive list of all the plentiful happenings related to human rights and the environment during the past year. (1) United Nations (UN) (A) UN Human Rights Council The UN Human Rights Council and the special rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment continue their valuable and active work protecting human rights in relation to environmental challenges and protection measures. On 23 March, the UN Human Rights Council, in its thirty-first session, adopted a new resolution on human rights and the environment (Doc. 31/8), reaffirming all of its previous resolutions, particularly referring to the latest resolution on human rights and the environment (28 November 2015). The new resolution welcomes the adoption of the Paris Agreement under the United Nations Framework Convention on Climate Change (UNFCCC), which entered into force on 4 November 2017. Parties acknowledge in the preamble that they should, when taking action to address climate change, respect, promote, and consider their respective obligations on: human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities, and people in vulnerable situations and the right to development as well as gender equality, the empowerment of women, and intergenerational equity (Res. A/HRC/RES/31/8, Preamble, 1). The resolution emphasizes that climate change, the unsustainable management and use of natural resources, and the unsound management of chemicals and waste may interfere with the enjoyment of a safe, clean, healthy, and sustainable environment and that environmental damage can have negative implications, both direct and indirect, for the effective enjoyment of all human rights, particularly those that are already in vulnerable situations (Doc. A/HRC/RES/31/8, Preamble, 2). The resolution calls upon states: (1) to respect, protect and fulfil human rights, including in actions relating to environmental challenges; (2) to adopt and implement laws ensuring, among other things, the rights to information, participation, and access to justice in the field of the environment; (3) to facilitate public awareness and participation in environmental decision making, including civil society, women, youth, and indigenous peoples, by protecting all human rights, including the rights to freedom of expression and to freedom of peaceful assembly and association; (4) to implement fully their obligations to respect and ensure human rights without distinction of any kind, including in the application of environmental laws and policies; (5) to promote a safe and enabling environment in which individuals, groups, and organs of society, including those working on human rights and environmental issues, can operate free from threats, hindrance, and insecurity; (6) to provide for effective remedies for human rights violations and abuses, including those relating to the enjoyment of a safe, clean, healthy, and sustainable environment, in accordance with their international obligations and commitments; and (7) to take into account human rights obligations and commitments relating to the enjoyment of a safe, clean, healthy, and sustainable environment in the implementation and monitoring of the Sustainable Development Goals (SDGs), bearing in mind the integrated and multi-sectoral nature of the latter (Doc. A/HRC/RES/31/8, para. 4). The resolution highlights and supports the work undertaken to date by the special rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment and takes note of his most recent reports on possible methods of implementing human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment (Doc. A/HRC/31/53) and on human rights obligations relating to climate change (Doc. A/HRC/31/52, Resolution 31/8, 2, para. 1). The latter study on human rights obligations relating to climate change had been released by the special rapporteur in February 2016 (Doc. A/HRC/31/52, 1 February 2016). The study highlights that the foreseeable adverse effects of climate change on the enjoyment of human rights give rise to duties of states to take actions to protect against those effects. Human rights obligations apply not only to decisions about how much climate protection to pursue but also to the mitigation and adaptation measures through which the protection is achieved (Doc. IV.A on General Considerations, para. 33). The starting point—as well as the conclusion—is that complying with human rights obligations not only helps to protect the rights of everyone affected by climate change but also promotes policy coherence, legitimacy, and sustainable outcomes (para. 86). Protecting human rights thus benefits the sustainability of the earth. The study also points out that although, in some respects, the application of these obligations is relatively straightforward the scale of climate change introduces complicating factors, and the causal chains of this global problem linking individual contributions with specific effects may be impossible to discern with certainty (para. 34). Apart from questions of causation and responsibility, the nature of climate change requires considerations on how human rights norms apply to a global environmental threat (para. 40). The study points out extraterritoriality as a possible response—that is, to conclude that climate change implicates the obligation of each state to protect the human rights of those outside, as well as those within, its own jurisdiction (para. 41). In addition to the substantive obligations, the study focuses particularly on procedural rights related to climate change—that is, rights to environmental information and public participation as well as effective legal remedies. In relation to environmental information, environmental impact assessment is also stressed. The study emphasizes that to enable informed public participation, the rights of freedom and expression and association must be safeguarded for all people in relation to all climate-related actions, including for individuals who oppose projects designed to mitigate or adapt to climate change (para. 60). The study also emphasizes that states should ensure that projects supported by climate finance mechanisms respect and protect all human rights, including the rights of information, participation, and freedom of expression and association. The study points out that, for instance, the Clean Development Mechanism has been criticized for failing to provide for adequate stakeholder consultation, thereby resulting in human rights violations through displacement and the destruction of livelihoods (para. 61). Importantly, the study raises a special concern related to groups vulnerable to environmental harm, such as women, children, and indigenous peoples (para. 81, referring to the earlier report, Doc. A/HRC/25/53, paras 69–78). States should ensure that those who are in vulnerable situations and who are marginalized are fully informed of the effect of climate actions, that they are able to take part in decision-making processes, and that they are protected in developing and implementing all climate-related actions, because even if mitigation targets are met, vulnerable communities may still suffer harm as a result of climate change (para. 82). Special Rapporteur John H. Knox has listed a vast number of activities during the past year related to human rights and the environment in which he took part. To name just a few of them, first, the Committee on the Rights of the Child organized a Day of General Discussion on children’s rights and the environment in September. The statement of the special rapporteur points out that children are particularly susceptible to persistent and long-term environmental degradation, such as air pollution and water pollution. Because children’s immune systems are still developing, they suffer easily from skin, respiratory, and intestinal diseases, among others (The United Nations Mandate on Human Rights and the Environment, <http://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/Activities.aspx>). The rapporteur also highlighted the Convention on the Rights of the Child that recognizes the importance of the environment in the context of human rights of children (ibid.; Convention on the Rights of the Child, arts 29(1)(e), 24(2)(c)). Another important event took place in Geneva on 22 September on public consultation on biodiversity on human rights. In his concept note, the rapporteur points out that the loss of biodiversity may interfere with the enjoyment of a wide range of human rights and that the rights of indigenous peoples and others particularly reliant on healthy ecosystems are especially subject to threat. The full enjoyment of many human rights depends on healthy ecosystems. At the same time, effective biodiversity policies depend on the exercise of human rights, including rights to information and participation, and require taking into account the rights of those who live in protected areas or who are otherwise directly affected by the policies (John H. Knox, Public Consultation on Biodiversity and Human Rights (22 September 2016) <http://www.ohchr.org/Documents/Issues/Environment/ConceptNote22Sept2016.pdf>). (B) United Nations Environment Programme (UNEP) It should be noted that in the field of environment and human rights the special rapporteur works in close cooperation with UNEP. Throughout the mandate of the special rapporteur, UNEP has been a key partner in his work to identify and disseminate information about good practices in the use of human rights obligations relating to environmental protection (Doc. A/HRC/31/53, para. 23). During the year, they launched a series of regional judicial workshops on rights-based approaches to environmental issues, with the first held at North-West University, Potchefstroom, South Africa, on 12–14 April and the second to be held in Brazil in 2017. The aim of the workshop was to provide a high-level platform for engaging the global conversation about comparative environmental rights-based approaches among policy makers and governments, practitioners, non-governmental organizations, civil society, scholars, educators, and post-graduate students (<http://www.nwu.ac.za/New_Frontiers_in_Global_Environmental_Constitutionalism>). UNEP has also shared information and experience with other UN agencies. For example, it has participated in side events at the Human Rights Council and has introduced human rights concerns into side events at UNEP meetings (Doc. A/HRC/31/53, para. 23). The second session of the United Nations Environment Assembly (UNEA) of UNEP convened on 23–7 May and adopted twenty-four resolutions on key environmental issues, including a Resolution on Delivering on the 2030 Agenda for Sustainable Development (<https://sustainabledevelopment.un.org/index.php?page=view&type=30022&nr=243&menu=3170>). The 2030 Agenda for Sustainable Development, according to the drafters, represents a paradigm shift to replace today’s growth-based economic model with a new model that aims to achieve sustainable and equitable economies and societies worldwide and to ensure greater public participation in decision making, in line with Principle 10 of the Rio Declaration on Environment and Development.1 The 2030 Agenda has equality and non-discrimination as its centrepiece with the overall aim ‘to leave no one behind’ by ‘reaching the furthest behind first’ and by ensuring that SDG targets are met ‘for all nationals and peoples and for all segments of society.’2 The 2030 Agenda highlights critical links between development, the environment, well-being, and the full enjoyment of a wide range of human rights. The mutually supportive nature of these linkages has several dimensions. Environmental degradation is felt daily by millions of people around the world, including the most vulnerable, and negatively impacts ecosystems and biodiversity. Unsustainable patterns of production and consumption threaten our ability to achieve sustainable development and to successfully meet the challenges of the future.3 The UNEP Finance Initiative actively took part in the 2016 UN Forum on Business and Human Rights in Geneva on 14–16 November. Participants agreed that environmental and human rights concerns could no longer be divided, as shown by the UN Guiding Principles implementation. Increasingly, the principles will have to connect to global processes such as SDGs, the G-20, and the UNFCCC to achieve policy coherence and maximize impact (UNEP Foreign Investment Takeaways, at 2 <http://www.unepfi.org/wordpress/wp-content/uploads/2016/10/UNEP-FI-Takeaways-from-the-UN-Business-and-Human-Rights-Forum-2016.pdf>). (C) Office of the United Nations High Commissioner of Human Rights (OHCHR) In accordance with the requests from the Human Rights Council (Council Resolutions 6/20, 12/15, 18/14, and 24/19), the OHCHR has convened five biennial meetings of the UN and regional human rights mechanisms to share information and enhance cooperation. The meetings can focus on specific themes (Doc. A/HRC/31/53, para. 33). The theme for the year 2016 was environmental human rights defenders. As pointed out by the OHCHR, environmental human rights defenders (EHRDs) strive for the realization of the rights and fundamental freedoms as they relate to the enjoyment of a safe, healthy, and sustainable environment. Despite the protection afforded to them by human rights law, EHRDs increasingly face heightened risks and suffer grave violations of their rights as a result of their defence of land, environment, and indigenous rights. They are subjected to killings and detention, threats and intimidation, stigma and criminalization from state and non-state actors (OHCHR, Environmental Human Rights Defenders: Call for Input <http://www.ohchr.org/EN/Issues/SRHRDefenders/Pages/Environmental.aspx>). For this reason, the UN special rapporteur on the situation of human rights defenders, Michel Forst, was given the task of exploring these issues in a report on the situation of EHRDs around the world, which was to be presented in October 2016 to the UN General Assembly (ibid). In 2016, the special rapporteur published an extensive report on EHRDs entitled They Spoke Truth to Power and were Murdered in Cold Blood: Analysis on the Situation of Environmental Human Rights Defenders and Concrete Recommendations to Better Protect Them (Michel Forst, Demonstration in Honduras in 2016: Front Line Defenders <https://www.protecting-defenders.org/sites/protecting-defenders.org/files/environmentaldefenders_0.pdf>). The report is an adaptation of the official report of the special rapporteur (UN General Assembly, Report of the Special Rapporteur on Human Rights Defenders, Doc. A/71/2813 (August 2016)). The report raises alarm about the increasing and intensifying violence against EHRDs and holds that protecting EHRDs is crucial to the protection of the environment and human rights that depend on it. (2) Environment-Related Cases in Human Rights Monitoring Bodies (A) Inter-American Commission on Human Rights In December, the Inter-American Commission on Human Rights decided on the admissibility of the case that, indirectly, can be regarded as an environmental human rights case because it involves land conflict. In the case of Almir Muniz Da Silva v Brazil, the petitioners claimed that the disappearance of the alleged victim was associated with his participation both as a human rights defender and as a leader of rural workers and with his complaint against actions taken by the police during the land conflict in the State of Paraíba. Due to such a claim, Muniz was allegedly subjected to death threats by a civil police officer a year and a half before the alleged victim went missing. In this regard, they alleged state responsibility for the failure to prevent Muniz’s disappearance and to fulfil its obligation to duly investigate the crime and punish the persons responsible. The commission is yet to decide on the merits of the case in the near future. Human rights defenders face serious problems in Latin America. Often these crimes are connected to the conflicts related to land and resources. The Inter-American Commission on Human Rights reports the increase in killings of human rights defenders in 2016 and notes with concern the greater vulnerability to this type of violence for peasant, indigenous, and Afro-Colombian leaders (<http://www.oas.org/en/iachr/media_center/PReleases/2016/160.asp>). (B) Inter-American Court of Human Rights On 16 March, the Inter-American Commission brought the case of Xucuru Indigenous People v Brazil to the Inter-American Court of Human Rights (Case no. 44/15, 12.728 (28 July 2015)). The petitioners allege that the state has violated the right to collective property of the Xucuru indigenous people and its members as a result of the delay in the demarcation of their ancestral land and the ineffectiveness of the judicial protection intended to guarantee such rights as well as the lack of effective and accessible judicial remedies. The Inter-American Commission on Human Rights concludes that the state of Brazil violated the right to property enshrined in Article XXIII of the American Declaration and Article 21 of the American Convention on Human Rights (American Convention), in relation to Articles 1.1 and 2 of the same instruments, to the detriment of the Xucuru indigenous people and its members. In addition, the state of Brazil violated the right to personal integrity enshrined in Article 5 of the American Convention, in relation to Article 1.1. of the same instrument. Furthermore, the state of Brazil violated the rights to a fair trial and judicial protection enshrined in Articles 8.1 and 25.1 of the American Convention, in relation to Article 1.1 thereof to the detriment of the Xucuru indigenous people and its members (ibid, 1, 2, para. 108). The Inter-American Court will have to make a ruling of the case in the near future. (C) European Court of Human Rights In the European Court of Human Rights, there is a unique environmental application pending regarding the construction threatening an archaeological site, Ahunbay and Others v Turkey, Austria and Germany (Case no. 6080/06). Application was communicated to the Turkish government on 21 June. This case concerns the construction of a dam that threatens an important archaeological site. The court declared inadmissible the applicants’ complaints against Austria and Germany. It furthermore decided to give a notice of the application to the Turkish government and put questions to the government under Articles 8 (right to respect for private life) and 10 (freedom to receive or impart information or ideas) of the European Convention on Human Rights (ECHR) (Ahunbay and Others v Turkey, Austria and Germany, Case no. 6080/06 (21 June 2016)). Another environment-related case concerned freedom of assembly and association (Article 11 of the ECHR). In the case of Costel Popa v Romania, the applicant, who is a founder of an environmental association, complained in particular about the Romanian courts’ refusal to register the association in question without giving him time to rectify any irregularities in the articles of association, which had been provided for by national law, before ending the registration process (Case 47558/10 (Judgment (Merits and Just Satisfaction),  ECHR 379 (26 April 2016)). The court held that there had been a violation of Article 11 of the ECHR, finding that the reasons invoked by the Romanian authorities for refusing registration of the association were not guided by any pressing social need nor were they convincing and compelling. Consequently, the decision to refuse to register the association, taken even before the association had started operating, appeared disproportionate to the aim pursued (European Court of Human Rights, Factsheet: Environment and ECHR (October 2016) <http://www.echr.coe.int/Documents/FS_Environment_ENG.pdf>). Applications of Cordella and Others v Italy (Case no. 544414/13) and Ambrogi Melle and Others v Italy (Case no. 54264/15) were communicated to the Italian government on 27 April. These applications concern the polluting emissions from the Taranto Ilva steel plants. The applicants, living in or near Taranto, alleged that the Italian authorities failed to take the necessary measures to safeguard the environment and health of persons. The court gave notice of the applications to the Italian government and put questions to the parties under Article 2 (right to life), Article 8 (right to respect for private life), and Article 13 (right to an effective remedy) of the ECHR (ibid., 2). Footnotes 1 A contribution to the global follow-up and review in the 2016 High Level Political Forum on the work of the United Nations Environment Programme, the President of the United Nations Economic and Social Council, HE Ambassador Oh Joon, for the UN Environment Assembly to offer substantive inputs to the 2016 HLPF showcasing UNEA’s contribution towards the 2030 Agenda in general, and particularly for the sustainable development goals and respective targets that are substantial to UNEA’s mandate: <https://sustainabledevelopment.un.org/content/documents/10554UNEA%20inputs%20to%20the%20HLPF%202016%20(Final).pdf> at 1. Introduction, a1. 2Ibid. 3Ibid, b5. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org
Yearbook of International Environmental Law – Oxford University Press
Published: Dec 28, 2017
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