International human rights in an environmental horizon

European Journal of International Law

Volumn 21, Issue 1, 2010, Pages 41-55

  Francioni, Francesco ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

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EID: 77953572885     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chq019     Document Type: Article

References (53)

1. See, in particular, the following books by A. Cassese: I diritti umani nel mondo contemporaneo (1994).
2. Self-determination of Peoples: a Legal Reappraisal (1995).
3. The Current Legal Regulation of the Use of Force (1986).
4. Il diritto internazionale nel mondo contemporaneo (1984).
5. See Redgwell, 'Access to Environmental Justice', in F. Francioni (ed.), Access to Justice as a Human Right (2007), at 153ff.
6. Cameron and Mackenzie, 'Access to Environmental Justice and Procedural Rights in International Institutions', in A. Boyle and M. Anderson (eds), Human Rights Approaches to Environmental Protection (1996), at 129ff.
7. Done 25 June 1998, entered into force 30 Oct. 2001, 2161 UNTS 447.
8. Adopted 8 Sept. 1993 and entered into force 1 Jan. 1994, 32 ILM (1993) 1482.
9. Adopted by GA Res 61/295 of 13 Sept. 2007. Art. 29 of the Declaration expressly addresses environmental rights and reads as follows: 1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. 2. 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. 3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.
10. African Charter on Human and Peoples' Rights, adopted 27 June 1981, entered into force 21 Oct. 1986.
11. It is not by chance that only 6 years before the UN had adopted the two most important human rights treaties on Civil and Political Rights, and on Economic, Social and Cultural rights, under the name of 'Covenants' thus underscoring, at least at a political and moral level, their character of a solemn commitment toward the international community as a whole rather than a mere contractual instrument
12. This potential of Art. 1 was clearly perceived by some forward looking commentators of the time. See particularly Sohn, 'The Stockholm Declaration on the Human Environment', 14 Harvard Int'l LJ (1973) 451.
13. The UN Climate Conference was convened in Copenhagen on 7 Dec. 2009 and ended with no binding commitment on mandatory greenhouse gases reduction within predetermined time schedules.
14. The Draft Declaration of Principles on Human Rights and the Environment, with the report of Special Rapporteur F. Z. Ksentini, Annex 1, can be seen as an elaboration of Principle 1 of the Stockholm Declaration: it declared in para. 2 that '[a]ll persons have the right to a secure, healthy and ecologically sound environment' and in para. 4 the right to 'an environment adequate to meet equitably the needs of present generations and that does not impair the rights of future generations to meet equitably their needs': UN Doc E/CN.4/Sub.2/1992/7.
15. Council of Europe Committee of Experts for the Development of Human Rights, 'Final Activity Report on Human Rights and the Environment', 10 Nov. 2005, DHDEV(2005)06 rev.
16. See below section 3
17. General Comment No. 15: the right to Water (Arts 11 and 12), 26 Nov. 2002, ESCOR, 2003, Supp. 2, 120.
18. Adopted 17 June 1999, UN Doc MP. WAT/2000/1.
19. In this sense see Boyle, 'Environment and Human Rights', in Max Planck Encyclopaedia of Public International Law (2009), at para. 14.
20. Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), filed with the International Court of Justice on 4 May 2006, still pending at the time of writing (1 Sept. 2009).The complaint before the InterAmerican Commission on Human Rights was initiated by the Governor of the Argentine Province of Entre Rios on the basis of the alleged violation by Uruguay of a number of Arts of the American Convention, its Protocol on Economic, Social and Cultural Rights, and the American Declaration.
21. For a comment see Piscitello and Andrés, 'The Conflict Between Argentina and Uruguay Concerning the Installation and Commissioning of Pulp Mills before the International Court of Justice and Mercosur', 67 ZaoRV (2007) 159, at 181
22. Glamis Gold Ltd. v. Government of the United States of America, available at: www.state.gov./documents/organization/.
23. For a systematic analysis of this practice see P.M. Dupuy, F. Francioni, and E.U. Petersmann (eds), Human Rights in International Investment Law and Arbitration (2009).
24. See Methanex Corp v. United States, Final Award, 3 Aug. 2005 44 ILM (2005) 1345
25. Parkerings-Compagniet AS v. Republic of Lithuania, Case No. ARB/05/08/, Award of 11 Sept. 2007, available at: icsid.worldbank. org/ICSID/Index.jsp.
26. Compania del Desarrollo de Santa Elena, SA v. Republic of Costa Rica, Case No. ARB/96/1, Final Award, 17 Feb. 2000, 5 ICSID Rep 157, 39 ILM (2000) 1317.
27. ECtHR SeriesA, No. 303 C.
28. ECtHR Rep (1998-I) 210
29. ECtHR Rep (2005-IV) 255
30. 2004-X Eur. Ct HR 1149, at paras 124-125.
31. Art. 8 of the ECHR states: 'Everyone has the right to respect for his private and family life, his home and his correspondence... There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law.'
32. A, Boyle, 'Human Rights or Environmental Rights? A Reassessment', XVIII Fordham Environmental L Rev (2007) 471, at 497
33. Convention on Access to Information. Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998, 38 ILM (1999) 517.
34. Adopted at Espoo, Finland, 25 Feb. 1991, 30 ILM (1991) 800.
35. ECtHR Rep (2003-VI) 257
36. This argument has also been proposed by Judge Loucaides on the basis of an expansive reading of the notions 'home' and 'private life' used in Art. 8. But his proposal remains confined within an individualistic horizon of rights protection.
37. See Loucaides, 'Environmental Protection through the Jurisprudence of the ECHR', 75 British Yrbk Int'l L (2004) 249
38. This approach would have been consistent with the approach followed a year later by the Court in Taskin. See supra note 29.
39. Soc. and Econ. Rights Action Centre v. Nigeria, Case No. ACHPR/COMM/A044/1, OAU Doc. CAB/LEG/67/3 rev 5, at para. 51.
40. Art. 24 reads: 'All peoples shall have the right to a general satisfactory environment favourable to their development'.
41. IACtHR Series C No. 79, 31 Aug. 2001.
42. Case 7615, IACommHR Report No. 12/85 OEA/Ser L/V/II.66 doc. 10 Rev 1.
43. UN Human Rights Committee, Communication No. 511/92, CCPR/C/52/511/1/1992 (1994), at para. 9.
44. Brun v. France, where the Human Rights Committee declared that 'no person may, in theoretical terms and by action popularis, object to a law or practice which he hold at variance with the Covenant': Communication No. 1453/2006, UN Doc. CCPR/C/88/D/1453 (2006), at para. 6.
45. EHP v. Canada, where the Committee dismissed a claim of local residents based on the protection of the right to life and private life against the opening up of a nuclear waste dumping site. The application was dismissed for failure to exhaust local remedies, but the Committee recognized that the dumping of such waste might have raised a serious threat to life for the local population: Communication No. 67/1980, 27 Oct. 1982.
46. UN Selected Decisions of the Human Rights Committee under the Optional Protocol (1990), ii, at 20
47. Bordes et al. v. France, Communication No. 645/1995, 22 July 1996.
48. Francis Hopu and Tepoaitu Bessert v. France, Communication No. 549/1993, UN Doc.CCPR/C/60D/549/1993/Rev/1, 29 Dec. 1997.
49. Human rightism is the approximate translation of the picturesque phrase popularized by A. Pellet in his scathing critique of human rights scholarship as an independent and selfsufficient discipline separate from international law.
50. See Pellet, ' "Human Rightism" and International Law', X Italian Yrbk Int'l L (2001) 3
51. Alston, ' "Core Labour Standards" and the Transformation of the International Labour Rights Regime', 15 EJIL (2004) 457
52. Donnelly, 'Third Generation Rights', in C. Broelmann et al. (eds), Peoples and Minorities in International Law (1993), at 119ff
53. And by the same author 'Human Rights, Individual Rights and Collective Rights', in J. Berting et al. (eds), Human Rights in a Pluralistic World, Individuals and Collectivities (1990), at 39.