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environmental rights comparison between Europe & India

Tuesday 19 April, 2011

John Marshall Law School’s Center for International Law hosted this lunch & learn program ENVIRONMENTAL RIGHTS – AN INTERNATIONAL AND COMPARATIVE PERSPECTIVE featuring Prof. Mark Poustie, Head of the law school @ University of Strathclyde in Glasgow, Scotland.  He 1st likened environmental rights to human rights, & compared them to civil & political rights ( for ex. rights to self-determination).  Are they like the right to life?  Are they substantial, procedural, or both?  A comparison between Europe & India ensues.

The Stockholm Declaration in 1972 stated “Man has the fundamental right to …an environment of a quality that permits a life of dignity & well-being.”  By 1992, the Rio Declaration declared, “Human beings are at the centre of concerns for sustainable development.  They are entitled to a healthy & productive life in harmony with nature.”  The African Charter treaty of 1981 articulated, “All peoples shall have the right to a general satisfactory environment favourable to their development.”  The San Salvador Protocol in 1988 says, “Everyone shall have the right to live in a healthy environment…the State’s Parties shall promote the protection, preservation, & improvement of the environment.”   Finally, the Aarhus Convention in 1998 ambles on, “Recognizing that adequate protection of the environment is essential to human well-being & the enjoyment of human rights,…Recognizing that every person has the right to live in an environment adequate to his or her health & well being…”

There are a number of explicit environmental rights which have been adopted.  A number of existing civil & political rights have been re-interpreted to have an environmental dimension, although more at a regional than global level.  It’s unlikely that there will be customary international universal right to a clean environment.

Europe greatly depends on permits issued by integrated national or regional agencies for pollution prevention & control.  Inspection powers & enforcement mechanisms with reasonable degrees of enforcement activity underpin criminal law in the UK & civil penalty system in Germany.  There are extensive rights to access to information.  These are supplemented by emissions trading, environmental taxes, etc. There are limited restrictions on taking actions against state bodies.  The European Convention on Human Rights provides the right to life.

By comparison, India’s permit systems are operated by fragmented State Pollution Control Boards.  They provide inspection powers & rely on criminal law for enforcement, but there are serious problems of under-enforcement, & few alternative mechanisms.  There was very limited access to information until 2005’s Right to Information Act.  The public sector is largely immune from tort action.  India’s constitution provides the right to life.

Europe & India are similar, in that both involve re-interpretation of existing rights.  Most focus on failure by state authorities to regulate or enforce adequately, but there is a reluctance to challenge major governmental projects.  India differs from Europe, in that:

  • it takes a less gradual approach to the development of rights & remedies available
  • access to justice is broader
  • resorting to litigation is much swifter
  • European Convention on Human Rights qualifications are less apparent
  • there is a less structured approach to decision-making
  • it’s a national system as opposed to a regional international system.

The value of environmental rights is in being able to address failures to regulate or enforce by state authorities, which helps ensure fulfillment.   Environmental rights are limited by:

  • issues not directly impacting human rights
  • definition issues-what’s a clean/healthy environment?
  • constitutional problems-are judges best placed to adjudicate complex multi-faceted claims involving resource allocation?
  • rules that impact on effectiveness
  • conflicts between human rights & environmental protection
  • weakening systems of environmental administration
  • culture change in public administration

re: environmental rights & climate change:

  • climate change will have an impact on human rights
  • climate change focuses on aggregate human welfare & recognizes different levels of development
  • environmental rights may help further progress with development of a post-Kyoto regime
  • environmental rights may shift focus from aggregate human welfare to the need to assist individuals with adaptation & mitigation
  • will a lack of universal environmental rights limit the usefulness of rights-based approaches to climate change?

Q&A-The court of international justice has indirectly recognized environmental rights & confirmed sustainable development as a principle of law.

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