Environment rights versus environmental wrongs: Forum over substance?

Review of European Community and International Environmental Law

Volumn 16, Issue 3, 2007, Pages 261-273

  Soveroski, Marie ^a,b  

^a Earth Rights International   (United States)

^b Earth Rights International   (Thailand)

Author keywords

[No Author keywords available]

Indexed keywords

DEVELOPMENT STRATEGY; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL PROTECTION; ENVIRONMENTALISM; HUMAN RIGHTS; PUBLIC ACCESS;

EURASIA; EUROPE; NORTHERN EUROPE; SCANDINAVIA; STOCKHOLM [SWEDEN]; SWEDEN;

EID: 38349131108     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2007.00575.x     Document Type: Article

References (179)

1. Declaration on the Environment and Development in Report of the UN Conference on Environment and Development (Stockholm Declaration) (UN Doc. A/CONF.48/14/Rev.1, 16 June 1972), Principle 1.
2. In a traditional Western legal sense, a right can be said to reflect 'a legal position which a person, recognized as such by law... may have and which ... can be enforced ... against others': W. van Gerven, 'Of Rights, Remedies and Procedures', 37:3 Common Mkt L.R. (2000), 502. This article will take this definition as a basis, but will consider rights in a broader sense as well.
3. For example, the right to a clean or healthy environment, to clean water, etc.
4. For similar reasons, development of international economic law is also an important influence in this area. See, for example, L. Rajamani, Differential Treatment in International Environmental Law (Oxford University Press, 2006).
5. General practice by States becomes binding customary international law through repetition and acceptance by States. See Statute of the International Court of Justice, 59 Stat. 1031 (26 June 1945), Article 38(1)(b), 59 Stat. at 1055, printed in 33 UNTS 993.
6. Universal Declaration of Humans Rights (GA Res. 217A, 18 December 1948), UNGAOR, Supp. No 13 (UN Doc. A/810, 1948).
7. International Covenant on Civil and Political Rights (GA Res. 2200A, 16 December 1966), UNGAOR, Supp. No 16 (UN Doc. A/6316, 1967), printed in 999 UNTS 171.
8. International Covenant on Economic, Social and Cultural Rights (GA Res.2200A, 16 December 1966), UNGAOR, Supp. No 16 (UN Doc. A/6316, 1967), printed in 999 UNTS 3.
9. Communist countries pushed for the elaboration of economic, cultural and social rights, while capitalist countries pushed the civil and political rights agenda.
10. Both of these covenants were also significantly motivated by the post-colonialism that dominated that period, reflected in the prominent references to self-determination and the rights to economic independence and to 'freely dispose of ... natural wealth and resources, without prejudice to any obligations arising out of international economic co-operation ...' embodied in Article 1(1) and 1(2) of the covenants. In some ways the East-West divisions of the Cold War have been replaced by developed and developing country divisions, often equated with the North and South.
11. See ICESCR, n. 8 above. Article 2(1) requires States to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realization of the rights'.
12. H. Osofsky, 'Learning from Environmental Justice: A New Model for International Environmental Rights', 24:1 Stanford Env'l L.J. (2005), 78.
13. S. Sensi, 'Human Rights and the Environment: The Perspective of the Human Rights Bodies', in UN Environment Programme, Human Rights and the Environment, Proceedings of a Geneva Environmental Network Roundtable (UNEP, 2004), at 6, available at .
14. D. Shelton, Human Rights and the Environment: Jurisprudence of Human Rights Bodies, Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment, Background Paper No 2 (Geneva, 14-16 January 2002), at 11.
15. See Universal Declaration of Human Rights, n. 6 above, Article 3: 'Everyone has the right to life, liberty and security of person
16. see also ICCPR, n. 7 above, Article 7: 'Every human being has the inherent right to life'.
17. See further European Convention for the Protection of Human Rights and Fundamental Freedoms, n. 43 below, Article 2(1): 'Everyone's right to life shall be protected by law'
18. American Convention on Human Rights, n. 34 below, Article 4(1): 'Every person has the right to have his life respected.'
19. African Charter of Human and Peoples' Rights, n. 37 below, Article 4: 'Every human being shall be entitled to respect for his life and the integrity of his person'.
20. See, for example, H. Steiner and P. Alston, International Human Rights in Context: Law, Politics, Morals, 2nd edn (Oxford University Press, 2000), at 734-735.
21. UN Human Rights Commission, Res. 1982/7 (19 February 1982) and Res. 1983/ 43 (9 March 1983).
22. For example, Universal Declaration of Humans Rights, n. 6 above, Article 25, states: 'Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family ...'.
23. International Covenant on Economic, Social and Cultural Rights, n. 8 above, Article 11(1) has virtually the same language as the Universal Declaration.
24. In addition, Article 12(1) recognizes 'the right of everyone to the enjoyment of the highest standard of physical and mental health';
25. African Charter of Human and Peoples' Rights, n. 37 below, Article 16(1), has the same language, although referring to the 'best standard'
26. the Additional Protocol to the American Convention, n. 39 below, Article 10, states: 'Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being'.
27. The Committee prepared comments on all provisions of the ICESCR to help States in their reporting obligations. See General Comment No. 1 (1989), Official Record of the Economic and Social Council, 1989, Supplement No 4 (UN Doc. E/1989/22, 24 February 1989), Annex III, at 87, reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies (UN Doc. HRIGEN1Rev.6, 12 May 2003) (Comments Compilation), at 8.
28. See Comment on Article 12, the right to the highest attainable standard of health. UNCESCR, General Comment 14 (UN Doc. E/C.12/2000/4, 11 August 2000), para. 4.
29. Office of the UN High Commissioner for Human Rights, Resolution 2005/4, The Right of Everyone to the Enjoyment of the Highest Standard of Physical and Mental Health (UN Doc. E/CN.4/RES/2005/24, 15 April 2005).
30. Problems of the Human Environment, UNGA Res. 2398 (XXIII) (3 December 1968).
31. See Stockholm Declaration, n. 1 above. Principle 1, presented at the beginning of this article, best embodies the environmental rights content of the Declaration.
32. Named after the former Norwegian Prime Minister, Gro Harlem Brundtland, who oversaw the process of developing the report and declaration.
33. World Commission on Environment and Development, Our Common Future Report of the World Commission on Environment and Development (UN Doc. A/42/427, 11 December 1987), Annex 1, Principle 1, 'Proposed Legal Principles for Environmental Protection and Sustainable Development'. The UN General Assembly echoed this language in Resolution 45/94 (UN Doc. A/RES/45/94, 14 December 1990).
34. Heads of State from 108 countries participated in the 1992 Rio Conference on Environment and Development. See the website available at . This number dropped to 104 at the 2002 World Summit on Sustainable Development.
35. See Department of Public Information, Daily Briefing by Summit Spokeswoman (UN News and Media Service, 1 September 2002), available at
36. Rio Declaration (A/CONF. 151/5/Rev., 14 June 1992), printed in (1992) 31 ILM 873.
37. In general, the conference focused on States and their rights, rather than on people(s) and theirs. See, for example, M.N. Shaw, International Law, 4th edn (Cambridge University Press, 2001), at 588.
38. A. Kiss and D. Shelton, International Environmental Law, 3rd edn (Transnational Publishers, 2004), at 668.
39. P. Sands, Principles of International Environmental Law, 2nd edn (Cambridge University Press, 2003), at 66.
40. Plan of Implementation of the World Summit on Sustainable Development, Johannesburg, South Africa, 26 August-4 September 2002 (A/CONF.199/20, 4 September 2002), Resolution 2, Annex, para. 152 (emphasis added). An EU proposal to include acknowledgement of the link between human rights, environmental protection and sustainable development in the WSSD Declaration was rejected.
41. See M. Pallemaerts, 'Proceduralizing Environmental Rights: The Aarhus Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters in a Human Rights Context', in UNEP, n. 13 above, at 15-16.
42. American Declaration of the Rights and Duties of Man (Bogota,́ 2 May 1948).
43. Ibid., Article 1, Article IX and Article XI, respectively.
44. American Convention on Human Rights (San Jose,́ 22 November 1969).
45. All the regional regimes presented here use terminology referring to the right to 'respect', signifying a focus on State obligation versus the individual right itself.
46. Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador (OEA/Ser.L/V/II.96 doc.10 rev.1, 24 April 1999), at 88.
47. African Charter of Human and Peoples' Rights (Nairobi, 27 June 1981).
48. Ibid., Article 4 and Article 16, respectively. It is interesting to note, however, that although the African Charter contains specific reference to a right to a satisfactory environment, claims to environmental rights within the African system have generally invoked the African Charter Article 16 right to health.
49. See D. Shelton, n. 14 above, at 4.
50. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, OAS Treaty Series 69 (San Salvador, 17 November 1988), at 67.
51. The reference to public services is reflective of problems with privatization, particularly with respect to provision of water, which were arising in Latin America at that time.
52. Efforts by the Council of Europe to draft a protocol on environmental rights failed due to a lack of political support by States. See P. Sands, n. 30 above, at 298-299.
53. Parliamentary Assembly, State of Human Rights and Democracy in Europe Report of the Committee on the Environment, Agriculture, and Legal and Regional Affairs (Doc. 11219, 31 March 2007), para. 19.
54. European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950), available at .
55. ECtHR 9 December 1994, Lopez-Ostra v. Spain, Application No 16798/ 90, (1995) 20 EHRR 277.
56. ECtHR 9 June 2005, Fadeyera v. Russia, Application No 55723/00, Reports of Judgments and Decisions 2005-IV.
57. ECtHR 19 February 1998, Guerra and Others v. Italy, Application No 14967/89, Reports of Judgments and Decisions 1998-V. The court also ruled that the failure to provide information vital to making an informed decision about whether to remain living near the factory was a violation of Article 8.
58. ECtHR 2 November 2006, Giacomelli v. Italy, Application No 59909/ 00.
59. ECtHR 10 November 2004, Taskin v. Turkey, Application No 46117/99, Reports of Judgments and Decisions 2004-X. The court held similarly in an almost identical case in Oĉkan v. Turkey, Application No 46771/99, Judgment of 28 March 2006.
60. ECtHR 16 November 2004, Moreno Gómez v. Spain, Application No 4143/02, Reports of Judgments and Decisions 2004-X.
61. In ECtHR 26 August 1997, Application No 2211/93, Balmer-Schafroth and Others v. Switzerland, Reports of Judgments and Decisions 1997-IV, the court ruled against applicants challenging renewal of a nuclear plant operating permit of because they did not prove they were in serious, specific, personal and imminent danger.
62. In ECtHR 2 October 2001, Hatton and Others v. United Kingdom, Application No 36022/97, the court used a balance of interest test in considering airport noise. The Hatton decision is particularly interesting as the court initially found an Article 8 violation. It stated: '[I]n the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country is not sufficient to outweigh the rights of others' (para. 97). This judgment, however, was reversed on appeal to the Grand Chamber of the Court, which stated that 'it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights': Hatton and Others v. United Kingdom, Reports of Judgments and Decisions 2003-VIII.
63. UNGA Res.1803 (XVII), 17 UN GAOR Supp. (No 17) (UN Doc. A/5217, 14 December 1962), at 15.
64. Ibid., Preamble, para. 2.
65. The Final Report prepared by Mrs Fatma Zohra Ksentini, Special Rapporteur, Review of Further Developments in Fields with which the Sub-Commission has been Concerned: Human Rights and the Environment (UN Doc. E/CN.4/Sub.2/1994/9, 6 July 1994) (Ksentini Report), at 22, noted that almost all cases brought by indigenous people to the Human Rights Committee and Inter-American Court on Human Rights were related to land and/or environmental degradation.
66. See ICESCR, n. 8 above, and ICCPR, n. 7 above, Article 1(2) in both covenants.
67. See Africa Charter, n. 37 above, Article 21: 'All peoples shall freely dispose of their wealth and natural resources ...'.
68. ILO Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries (Geneva, 29 June 1989). Article 14(1) of Convention No 169 states that '(t)he rights of ownership and possession of the peoples concerned over the lands they traditionally occupy shall be recognized'. Article 15 provides that '(t)he rights of the peoples concerned to the natural resources pertaining to their lands shall be specifically safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources'.
69. Human Rights Committee, General Comment 23 (Fiftieth Session, 1994), Article 27. See Comments Compilation, n. 19 above, General comment 23, paras 7 and 9.
70. See American Declaration, n. 32 above, Articles 1, VIII and XI, respectively. Inter-American Commission on Human Rights 5 March 1985, Case No. 7615, Yanomani Indians v. Brazil, O.A.S../Ser.L/V/II66, doc.10, rev.1.
71. See Inter-American Court of Human Rights 17 June 2005, Case 12.313, Indigenous Community Yakye Axa v. Paraguay, available at .
72. Inter-American Court of Human Rights 20 February 2003, Case 0322/2001, Sawhoyamaxa Indigenous Community of Enxet People v. Paraguay, Report No. 12/03, OEA/Ser.L/V/II.118, Doc.
73. Rev.2, available at .
74. UN Declaration on the Rights of Indigenous Peoples (UN Doc. A/HRC/1/ L.10, 30 June 2006).
75. Working Group of the Commission on Human Rights to Elaborate a Draft Declaration in accordance with paragraph 5 of the General Assembly Resolution 49/214 of 23 December 1994 (Resolution 2006/2, 29 June 2006), Annex, Articles 20(1), 24(1), 25 and 26(1).
76. Ibid., Article 29(1) and (2).
77. Ibid., Article 32(1)-(3).
78. Report of the UN Water Conference, Argentina, 25 March 1977 (UN Pub. No E.77, IIA.12).
79. Convention on the Elimination of All Forms of Discrimination Against Women (New York, 18 December 1979). Article 14(2) states that parties are to ensure the right 'to enjoy adequate living conditions, particularly in relation to ... water supply'.
80. Convention on the Rights of the Child (New York, 20 November 1989). Article 24(2) states the obligation to support health 'through the provision of ... clean drinking-water'.
81. European Parliament, Resolution on Water Management in Developing Countries and Priorities for EU Development Cooperation (Bulletin EU 9-2003, 1.6.68, 4 September 2003). Based on Resolution on Water Management in Developing Countries and Priorities for EU Development Cooperation COM(2002) 132 final, SEC (2002) 288 (12 December 2002).
82. International Law Association, Water Resources Law Committee, Revision of the Helsinki Rules and other ILA Rules on Water Resources Fourth Report (ILA, 2004), Article 17(2).
83. A distinction can be made between pursuit of the right to water as a human right, versus a contractual or property right. See, for example, Overseas Development Institute, Right to Water: Legal Forms, Political Channels, ODI Briefing Paper (ODI, June 2004), at 1.
84. See also, B.R. Bruns, C. Ringler, and R. Meinzen-Dick (eds), Water Rights Reform: Lesson for Institutional Design (IFRI Publications, 2005).
85. General Comment No 15 (2002): The Right to Water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights) (UN Doc. E/C.12/2002/11, 26 November 2002).
86. Ibid., para. 1, at 1.
87. S. Tully, 'A Human Right to Access to Water?: A Critique of General Comment No. 15', 23:1 Netherlands Quarterly of Human Rights (2005), at 43.
88. J. Scanlon, A. Cassar, and N. Nemes, Water as a Human Right?, Environmental Policy and Law Paper No 51 (IUCN, 2004), at 12 and 25.
89. The Sub-Commission was subsequently renamed, in 1999, the Sub- Commission on the Promotion and Protection of Human Rights. See, in general, the website available at .
90. Commission on Human Rights Resolution 1990/41 (UN Doc. E/CN.4/Sub.2/ 1990/7, 6 March 1990).
91. Establishment of her mandate reflected the global divisions, which have characterized international efforts to address global environmental problems. While 'developing' countries (the primary importers of hazardous waste) were in favour of this mandate, 'developed' countries (the primary exporters of hazardous waste) were opposed. See A. Kiss and D. Shelton, n. 29 above, at 684.
92. See Ksentini Report, n. 53 above.
93. Ibid., para. 5. The report tied the rights to self-determination and permanent sovereignty over natural resources, life, health, food, safe and healthy working conditions, housing, freedom of association and culture, as well as 'procedural' rights (to information and public participation, particularly during environmental impact assessment and environmental monitoring processes) to a human right to a satisfactory environment.
94. See ibid., paras 163-225.
95. 'Draft Declaration of Principles on Human Rights and the Environment', Annex to Ksentini Report, n. 53 above, Part I, para. 2.
96. Ibid., Part II, para. 5.
97. See World Charter for Nature (UN Doc. A/RES/37/7, 28 October 1982).
98. IUCN Commission on Environmental Law, Environmental Policy and Law Paper No 31, Rev. 2 (IUCN, 2004), at xvii.
99. Ibid.
100. This is also reflected in the fact that requests to transform the mandate of the Special Rapporteur, which initially were focused on issues of movement of hazardous waste, to one looking more broadly at environment and human rights, were made by the first Special Rapporteur, the Sub-Commission on Prevention of Discrimination and Protection of Minorities (Resolution 1994/27, Human Rights and the Environment, thirty-sixth meeting (26 August 1994)) and the Working Group on Enhancing the Effectiveness of the Mechanisms of the Commission on Human Rights (UN Doc. E/CN.4/2000/12, 11 February 2000). However, this was not pursued by the Human Rights Commission, nor its successor the Human Rights Council.
101. See S. Sensi, n. 13 above, at 36-37.
102. Report of the Special Rapporteur, Okechukwu Ibeanu, Adverse Effects of the Illicit Movement and Dumping of Toxic and Dangerous Products and Wastes on the Enjoyment of Human Rights, submitted to the UN Commission on Human Rights, Economic and Social Council (UN Doc. E/CN.4/ 2006/42, 20 February 2006).
103. See elaboration of such arguments in P.W. Birnie and A.E. Boyle, International Law and the Environment, 2nd edn (Oxford University Press, 2002), at 255-259.
104. Ibid., at 23.
105. See Ksentini Report, n. 53 above, para. 241.
106. See P.W. Birnie and A.E. Boyle, n. 87 above, at 11.
107. EarthJustice, Environmental Rights Report: Human Rights and the Environment (EarthJustice, 2007), at 126-147, available at .
108. P. Taylor, 'From Environmental to Ecological Human Rights: A New Dynamic in International Law', X:2 Geo. Int'l Envtl. L. Rev (1998), 309, at 350.
109. I. Browlie, Principles of Public International Law, 5th edn (Oxford University Press, 2002), at 7.
110. Statute of the International Court of Justice, 59 Stat. 1031, Article 38(1)(c), at 1060.
111. For an overview of such recent national cases, see EarthJustice, n. 91 above, at 70-76.
112. See P.W. Birnie and A.E. Boyle, n. 87 above, at 250.
113. See A. Sinden, The Power of Rights: Imposing Human Rights Duties on Transnational Corporations for Environmental Harms, Research Paper No 2006-02, Legal Studies Research Paper Series (Temple University Beasley School of Law, 10 October 2006),
114. to be published D. McBarnet et al. (eds), The New Corporate Accountability: Corporate Social Responsibility and the Law (Cambridge University Press, 2007).
115. Report of the Special Representative of the Secretary-General (SRSG) on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, United Nations Human Rights Council, Fourth Session, Implementation of General Assembly Resolution 60/251 of 15 March 2006 (UN Doc. A/HRC/4/035, 9 February 2007), at 11-12.
116. Sub-Commission on the Promotion and Protection of Human Rights, UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Doc. E/CN.4/ Sub.2/2003/12/Rev.2, 26 August 2003).
117. Organization for Economic Cooperation and Development, Guidelines for Multinational Enterprises (OECD, 2000), available at .
118. See also Report of the SRSG, n. 98 above, at 15.
119. United Nations Economic and Social Council, Report of the United Nations High Commission on Human Rights on the Responsibilities of Transnational Corporations and Related Business Enterprises with regard to Human Rights (UN Doc. E/CN.4/2005/91, 15 February 2005), at 8.
120. The World Bank Group Environmental, Health and Safety Guidelines were recently updated. The revised version became effective 30 April 2007, and is available at .
121. See Report of the SRSG, n. 98 above, at 15-16. A number of international financial institutions - including the World Bank, the International Financial Corporation, the European Bank for Reconstruction and Development and the Asian Development Bank - have established compliance bodies, which are open to individual complaints.
122. See D. Hunter, 'The Emergence of Citizen Enforcement in International Organizations', in D. Zaelke et al. (eds), Making Law Work: Environmental Compliance and Sustainable Development (Cameron May, 2005), 616.
123. For more information see the website available at .
124. See Report of the SRSG, n. 98 above, at 5. The UN Special Representative for Trans-national Corporations and Human Rights has stated that 'international law firmly establishes that states have a duty to protect against non-state human rights abusers within their jurisdiction, and that this duty extends to protection against abuses by businesses entities'.
125. Inter-American Court of Human Rights, 29 July 1988, Velaśquez Rodriq́uez, 35, O.A.S./Ser./L/V/III19, doc. 13, para. 172.
126. Social and Economic Rights Action Center v. Nigeria, Communication No 155/96 (27 October 2001), at paras 44-48, in the Fifteenth Annual Activity Report of the African Commission on Human Peoples' Rights 2001-2002 (ACHPR, undated), available at .
127. See ODI, n. 70 above, at 2.
128. See World Charter for Nature, n. 82 above.
129. Ibid., Principle 23.
130. See IUCN Commission on Environmental Law, n. 83 above, Article 12(3)-(5).
131. See Rio Declaration, n. 27 above.
132. This right was also included in the UDHR, n. 6 above, Article 19; ICCPR, n. 7 above, Article 19, and is included in a growing number of environmental treaties.
133. See A. Kiss and D. Shelton, n. 29 above, at 669-673.
134. Ibid., at 684.
135. See Guerra, n. 46 above.
136. For example, UNDHR, n. 6 above, Article 10
137. ICCPR, n. 7 above, Article 14
138. American Declaration, n. 32 above, Article XVII
139. American Convention, n. 34 above, Article 25
140. and European Convention on Human Rights, n. 43 above, Article 6.
141. For example, see ICCPR, n. 7 above, Article 25
142. American Declaration, n. 32 above, Article 20
143. African Charter, n. 37 above, Article 13
144. American Convention, n. 34 above, Article 23
145. and the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25 February 1991).
146. '(R)egional and international human rights bodies are developing a practice whereby the procedural bases for enforcing the right to a satisfactory environment are becoming more firmly established and the validity of complaints of human rights violations based on ecological considerations is being recognized.' See Ksentini Report, n. 53 above, at para. 242.
147. See Inter-American Commission on Human Rights, n. 35 above, at 92-93.
148. See J. Knox, 'Citizen Suits in International Environmental Law: The North American Experience', in D. Zaelke et al., n. 104 above, at 616.
149. The North American Free Trade Agreement countries are Mexico, the USA and Canada.
150. North American Agreement on Environmental Cooperation (Washington, Ottawa and Mexico City, 8 December 1992).
151. Aarhus Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (Aarhus, 25 June 1998), available at .
152. Ibid., Article 5, 'Collection and Dissemination of Environmental Information'. The Kiev Protocol to the Convention (Kiev, 21 May 2003) requires States to establish a Pollutant Release and Transfer Register, to be made available on the internet, available at .
153. Ibid., Articles 6-8.
154. Ibid., Article 9(3).
155. Ibid., Article 9(2).
156. United Nations Economic Commission for Europe, UNECE holds Side-Event on Participatory Democracy and Good Governance at World Summit on Sustainable Development, press release (Geneva, 27 August 2002).
157. See M. Pallemaerts, n. 31 above, at 19-21.
158. See Communication No 547/1992 (CCPR/C/70/D/547/1993, 16 November 2000).
159. See D. Shelton, n. 14 above, at 3.
160. See A. Kiss and D. Shelton, n. 29 above, at 673-677.
161. See Taskin, n. 48 above.
162. ECtHR 12 July 2005, Okyay & Others v. Turkey, Application No 36220/97.
163. See Aarhus Convention, n. 124 above, Article 1, included under Objectives', which indicates that parties must provide access to information and justice and for participation in decision making '(i)n order to contribute to the protection of the right of every person of present and future generation to live in an environment adequate to their health and well-being'.
164. See M. Pallemaerts, n. 31 above, at 18.
165. Ibid.
166. See Report of the SRSG, n. 98 above, at 18.
167. See P. Sands, n. 30 above, at 297.
168. In the US federal court, the Alien Tort Statute (28 USC Section 1350 (2000)) has been used to bring claims against corporations for violations of the law of nations or a treaty of the USA. Cases have been brought for damage due to severe environmental pollution, but the courts have not considered this to rise to the level of a violation of the law of nations.
169. See Sarei v. Rio Tinto plc, 22 F.Spp. 2d 1116 (C.D.Cal. 2000)
170. and Flores v. Southern Peru Copper Corp., 343 F.3d 140 (2d Cir. 2003). It remains to be seen whether the courts would consider such damages as actionable under treaty law.
171. For arguments on using tort or property law to claim environmental rights, see V.B. Flatt, 'This Land is Your Land (Our Right to the Environment)', 107:1 W. Virginia L.R. (2004), 1.
172. Title VI of the Civil Rights Act of 1964, 42 USC Section 2000(d) et seq. For an overview of some of these issues, see K. Harper and S. Ravi Rajan, International Environmental Justice: Building the Natural Assets of the World's Poor, Working Paper Series No 87 (Political Economy Research Institute, University of Massachusetts, 2004).
173. See H. Osofsky, n. 12 above, at 88.
174. See A. Sinden, n. 97 above, at 7.
175. J. Razzaque, 'Environmental Human Rights in South Asia: Towards Stronger Participatory Mechanisms', in UNEP, n. 13 above, at 32-34. However, restricted access to information and limited opportunities to participate in decision making limits the utility of this access to justice.
176. See P.W. Birnie and A.E. Boyle, n. 87 above, at 25.
177. See, e.g., S. Prechal and L. Hancher, 'Individual Environmental Rights: Conceptual Pollution in EU Environmental Law?', in H. Somsen (ed.), Yearbook of European Environmental Law, Vol. 2 (Oxford University Press, 2002), at 89.
178. See, e.g., L. Rajamani, n. 4 above, at 22-24.
179. See A. Kiss and D. Shelton, n. 29 above, at 709.