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International Law in the Age of Global Warming: The Right to a Healthy Environment




Introduction

Ninety-seven percent of climate scientists believe that our planet’s warming atmosphere is a result of human activities.[1] According to NASA and the National Oceanic and Atmospheric Administration, 2016 was the hottest year on record since 1880 and similar reports claim that sea levels are rising at their fastest rate in 2,000 years[2]. Global warming, if indeed a result of human activity, will not discriminate when its effects intensify. Right now, however, it is the powerless, the voice-less and the vulnerable who face the peril of a warming planet. Such a notion begs the question of how the international legal order may help them.


Inter-American Court of Human Rights

Two years ago, Colombia “posed […] questions to the Inter-American court, which has jurisdiction over much of the Americas, roughly equivalent to the European Court of Human Rights (ECHR) to which the UK belongs.”[3] The questions posited the notion of whether ecological damage caused by Country A to an individual in Country B could be considered a violation of such an individual’s human rights. In a region such as the Americas, specifically Colombia, great cultural and economic value is attributed to the environment, most notably the Colombian marine reefs. As Monica Feria-Tinta and Simon Milnes of 20 Essex Street chambers suggest, ambitious engineering endeavours in the area, such as the looming Nicaragua’s interoceanic canal, could spell disaster for the welfare of the environment of the region and, subsequently, its inhabitants.[4]


In response, in February 2018, the Inter-American Court of Human Rights published an Advisory Opinion[5], in which the Court “recognized the existence of an irrefutable relationship between the protection of the environment and the realization of other human rights, due to the fact that environmental degradation affects the effective enjoyment of other human rights.”[6] It has been reported that the Court emphasized the importance of this shift “for the most vulnerable populations, such as indigenous peoples, children and those living in extreme poverty.”[7]


Jurisdiction

In the context of the American Convention on Human Rights, the Court’s Advisory Opinion stresses that jurisdiction over violations of state obligations in relation to environmental protection “includes situations beyond [a State’s] territorial limits”[8]. This alone goes beyond one of the least controversial principles of jurisdiction in international law: the territorial principle, i.e. a principle that a State may prosecute crimes committed within that State’s territory. This principle has, it is worthy to note, been expanded in the Strasbourg-based European Court of Human Rights interpretation of Article 1 of the European Convention on Human Rights (which ensures all member states secure Convention rights to individuals within their jurisdiction) in Loizidou v Turkey[9]. This judgment established that “effective control” had to be exercised by State A in a geographical part of State B for the jurisdiction of State A to be extended beyond its territory. Furthermore, it has been reported and argued that, in the Inter-American Court’s February 2018 Advisory Opinion[10], “[t]he court decided that, for transboundary damage, “the exercise of jurisdiction arises when the state of origin exercises effective control over the activities carried out that caused the harm and consequent violation of human rights”.


This marks a subtle but important shift: “effective control” is no longer something that has to be exercised over territory, nor even over individual victims, but only over the activities responsible for harm. This is crucial, because states do exercise control over those activities likely to destroy fragile ecosystems in their near abroad: a country which decided to build a transnational canal, or license drilling in an offshore oil field, could not credibly claim that such activities were outside its effective control.”


Potential developments

Naturally, the American Convention and the European Convention on Human Rights are conventions covering distinctly different geographical areas and, obviously, legal progress in one does not automatically lead to progress in the other. However, it is not unlikely that the Advisory Opinion will have a ripple effect on future legal decisions of, for example, the Strasbourg court or the UN-backed International Criminal Court which, in September 2016, released a policy paper which declared that “it would […] prioritise crimes that result in “destruction of the environment”, “exploitation of natural resources” and the “illegal dispossession” of land.”[11] The aforementioned United Nations has also issued a clarion call for legislative progress in the intersecting area of international law, human rights and the environment. Just this March, the United Nations Special Rapporteur on Human Rights and the Environment published and presented a report which “urged the UN to recognize the human right to a safe environment.”[12]


Based on these developments, it would appear that the international law order is slowly moving in the direction of recognizing the right to a healthy environment. It remains to be seen whether such a right will become internationally recognised.


Matt Wojcik

International Law Feature Writer

26th March, 2018


 

[1] Holly Shaftel, ‘Climate change: How do we know?’ (NASA, 15 March, 2018) <https://climate.nasa.gov/evidence/> Accessed 18/03/2018.

[2] Libby Plummer, Cara McGoogan, ’11 terrifying climate change facts’ (Wired, 4 September 2017) <http://www.wired.co.uk/article/climate-change-facts> Accessed 18/03/2018.

[3] Monica Feria-Tinta, Simon Milnes, ‘How international law could help victims of environmental degradation’ (The Guardian, 21 February 2018) <https://www.theguardian.com/commentisfree/2018/feb/21/international-law-cross-border-victims-environment-rulings> Accessed 18/03/2018.

[4] ibid 3.

[5] Advisory Opinion OC-23/17, Inter-American Court.

[7] ibid 6.

[8] n 5, p.3.

[9] Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99.

[10] n 3.

[11] John Vidal and Owen Bowcott, ‘ICC widens remit to include environmental destruction cases’ (The Guardian, 15 September, 2016) <https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases> Accessed 18/03/2018.

[12] Jennifer Dorroh, (March 13, 2018) ‘Safe Climate, Environment Should Be Held as a Human Right, UN Expert Says’ <https://www.climateliabilitynews.org/2018/03/13/un-climate-environment-human-right-john-knox/> Accessed 18/03/2018.



Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are listed in the bibliography above.

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