The Human Rights Fundaments of Conservation in the Context of the Extraction of Energy Resources 9783737004183, 9783847104186, 9783847004189

Citation preview

Bonner Rechtswissenschaftliche Abhandlungen Neue Folge

Band 14

Herausgegeben von Udo Di Fabio, Urs Kindhäuser und Wulf-Henning Roth

Mar†a Augusta Leûn Moreta

The Human Rights Fundaments of Conservation in the Context of the Extraction of Energy Resources

V& R unipress Bonn University Press

®

MIX Papier aus verantwortungsvollen Quellen

www.fsc.org

FSC® C083411

Bibliografische Information der Deutschen Nationalbibliothek Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar. ISBN 978-3-8471-0418-6 ISBN 978-3-8470-0418-9 (E-Book) Veröffentlichungen der Bonn University Press erscheinen im Verlag V& R unipress GmbH. Gedruckt mit freundlicher Unterstützung der Friedrich-Ebert-Stiftung. Ó 2015, V& R unipress in Göttingen / www.vr-unipress.de Alle Rechte vorbehalten. Das Werk und seine Teile sind urheberrechtlich geschützt. Jede Verwertung in anderen als den gesetzlich zugelassenen Fällen bedarf der vorherigen schriftlichen Einwilligung des Verlages. Printed in Germany. Druck und Bindung: CPI buchbuecher.de GmbH, Birkach Gedruckt auf alterungsbeständigem Papier.

In memoriam my grandfather Alonso Moreta Andrade

Contents

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

List of Abbreviations and Acronyms . . . . . . . . . . . . . . . . . . . .

13

List of Figures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17

B. Legal Foundations of the Link Between Human Rights and Conservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. Human Rights in International Law . . . . . . . . . . . . . . . . . 1. Objective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Classification . . . . . . . . . . . . . . . . . . . . . . . . . . . 5. Legal Nature of Human Rights Obligations . . . . . . . . . . . a. Obligation to Respect . . . . . . . . . . . . . . . . . . . . . b. Obligation to Ensure and Meet Human Rights . . . . . . . . c. Obligation to Protect . . . . . . . . . . . . . . . . . . . . . . d. Obligation to Respect Human Rights without Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . 6. Legal Framework for Human Rights . . . . . . . . . . . . . . . II. Environment and Conservation in International Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Environment in International Environmental Law . . . . . . . 2. Cause-and-Effect Relationship Between Human Activities and the Environment . . . . . . . . . . . . . . . . . . . . . . . . . . a. Global Driving Forces Affecting the Consumption of Natural Resources . . . . . . . . . . . . . . . . . . . . . . . b. Pressures on the Environment . . . . . . . . . . . . . . . . .

27 27 27 28 30 33 36 37 39 41 44 45 48 48 51 52 55

8

Contents

c. States, Impacts and Responses . . . . . . . . . . . . . . . . . 3. Conservation and International Environmental Law : a Way to Protect the Environment . . . . . . . . . . . . . . . . . . . . . 4. Principles and Rules of International Environmental Law . . . 5. Environmental Legal Framework . . . . . . . . . . . . . . . . . III. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

57

C. The Extraction of Natural Resources in the Energy Sector . . . . . . . I. The Extraction of Natural Resources . . . . . . . . . . . . . . . . 1. Natural Resources: Definition and Classification . . . . . . . . 2. Life Cycle of Natural Resources Within the Economy . . . . . . 3. The Extraction of Natural Resources and Its Impact . . . . . . 4. Natural Resources and Their Exploitation in International Law II. Energy in an International Context . . . . . . . . . . . . . . . . . 1. Energy and Development . . . . . . . . . . . . . . . . . . . . . 2. Extraction of Energy Sources . . . . . . . . . . . . . . . . . . . a. Non-renewable Energy Resources : Basic Components for the Generation of Fossil Fuels . . . . . . . . . . . . . . . . . b. Renewable Energy Resources: Keystones of the Development of Clean Energies . . . . . . . . . . . . . . . . 3. Property and Natural Resources . . . . . . . . . . . . . . . . . a. Property : Definitions and Categories . . . . . . . . . . . . . b. Permanent Sovereignty over Natural Resources . . . . . . . c. Ownership of Energy Resources . . . . . . . . . . . . . . . . 4. Energy Generation in International Law . . . . . . . . . . . . . a. Energy Law in International Law . . . . . . . . . . . . . . . b. Regulation of Non-Renewable Energy . . . . . . . . . . . . . c. Regulation of Renewable Energy . . . . . . . . . . . . . . . III. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

69 69 69 72 73 75 79 79 85

D. The Link Between Human Rights and the Environment . . . . . . . I. Substantive Rights . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Right to Life . . . . . . . . . . . . . . . . . . . . . . . . . a. Legal Foundations . . . . . . . . . . . . . . . . . . . . . . b. The Prohibition of Arbitrary Deprivation of Human Life in Relation to the Development of Dangerous Activities . . . c. The Duty to Protect Life by Law and its Role in the Extraction of Natural Resources . . . . . . . . . . . . . . . d. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Human Right to Property . . . . . . . . . . . . . . . . . a. Legal Foundations . . . . . . . . . . . . . . . . . . . . . .

58 61 65 66

85 91 99 99 102 106 112 112 116 118 120

. . . .

123 123 125 125

.

127

. . . .

131 135 136 136

9

Contents

3.

4.

5.

6.

b. Linking the Right to Property and the Environment in the Context of the Extraction of Energy Resources . . . . . . . . c. Indigenous Peoples and the Right to Property . . . . . . . . d. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . The Right to Respect for Private and Family Life and Home . . a. The Human Right to Respect for Privacy, Family and Home and its Ecological Approach . . . . . . . . . . . . . . . . . . b. Limitations of State’s Duties . . . . . . . . . . . . . . . . . . c. Extraction of Energy Resources in the Light of Article 8 of the European Convention on Human Rights . . . . . . . . . d. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . The Right to Adequate Standards of Living . . . . . . . . . . . a. The Right to Food . . . . . . . . . . . . . . . . . . . . . . . aa. Contents and Importance . . . . . . . . . . . . . . . . . bb. General Legal Obligations . . . . . . . . . . . . . . . . . cc. Specific Legal Obligations . . . . . . . . . . . . . . . . . dd. The Right to Food in the Context of Energy Resource Extraction . . . . . . . . . . . . . . . . . . . . . . . . . ee. Bionergy : A Challenge for the Realization of the Right to Food . . . . . . . . . . . . . . . . . . . . . . . . . . . ff. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . b. The Right to Housing . . . . . . . . . . . . . . . . . . . . . aa. Scope of Contents . . . . . . . . . . . . . . . . . . . . . bb. Obligations . . . . . . . . . . . . . . . . . . . . . . . . . cc. Forced Evictions and the Extraction of Energy Resources . . . . . . . . . . . . . . . . . . . . . . . . . . dd. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . The Right to Health . . . . . . . . . . . . . . . . . . . . . . . . a. Scope and Content . . . . . . . . . . . . . . . . . . . . . . . b. Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . c. The Role of the Environment in the Realization of the Right to Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . d. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . The Right to Water . . . . . . . . . . . . . . . . . . . . . . . . a. Water as a Human Right . . . . . . . . . . . . . . . . . . . . b. Legal Foundations . . . . . . . . . . . . . . . . . . . . . . . c. Definition and Normative Content . . . . . . . . . . . . . . d. Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . e. Water and the Extraction of Energy Resources . . . . . . . . f. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . .

141 143 152 154 154 160 166 169 171 172 172 174 177 182 185 189 191 191 195 197 210 212 212 215 223 233 235 235 236 243 250 258 266

10

Contents

II. Procedural Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Right to Participation . . . . . . . . . . . . . . . . . . . . a. The Right to Access to Information . . . . . . . . . . . . . . b. The Right to Participate in Decision-Making Processes . . . c. Benefit Sharing . . . . . . . . . . . . . . . . . . . . . . . . . d. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Access to Justice: an Environmental and Human Right . . . . . 3. Environmental Impact Assessment (EIA) . . . . . . . . . . . . III. Corporate Responsibility and Accountability for Transnational Corporations and Other Business Enterprises: Case of Study Texaco Oil Company and Chevron vs Lago Agrio Plaintiffs . . . . 1. Texaco Oil Company (Texpet) and Chevron vs Lago Agrio Plaintiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Responsibility and Accountability for Transnational Corporations and other Business Enterprises in Relation to Human Rights and Environmental Protection . . . . . . . . . . a. Corporate Responsibility and Accountability for TNCs With Respect to Human Rights . . . . . . . . . . . . . . . . . . . b. Corporate Responsibility and Accountability for TNCs With Respect to International Environmental Law . . . . . . . . . c. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . .

269 271 273 278 287 290 292 296

304 304

338 342 354 359

E. Conclusion: The Human Right Dimension of Conservation in the Context of the Extraction of Energy Resources . . . . . . . . . . . . .

361

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

371

Foreword

The present study was approved in the summer semester 2014 as a dissertation at Rheinische Friedrich Wilhelm University of Bonn. I would like to express my highest consideration and deep gratitude to my supervisor Prof Dr Dr h.c. Matthias Herdegen for giving me the free time needed to develop my research project. His support and comments were invaluable for the elaboration of my research. My special gratitude goes to the Friedrich Ebert Foundation for their unconditional encouragement of my work. It was an honour to be their scholarship holder. I am likewise grateful to the editors of ‘Bonner Rechtswissenschaftliche Abhandlungen’ [Bonn Jurisprudence Dissertations], Prof Dr Dr Udo Di Fabio, Prof Dr Dres. h.c. Urs Kindhäuser and Prof em. Dr Wulf-Henning Roth who accepted the publication of my dissertation as part of the recognized series. Finally, I would like to thank my parents, Germania and Alfonso, for their love and support and to my family and friends for encouraging me to carry out this project. Mar†a Augusta Leûn Moreta Quito, January 2015

List of Abbreviations and Acronyms

ACHPR ACHR ACmHPR ATCA BITs C155 ILO

African Charter of Human and People’s Rights American Convention on Human Rights African Commission on Human and Peoples Rights Alien Tort of Claims Act Bilateral Investment Treaties International Labor Organization Convention No. 155 concerning Occupational Safety and Health and the Working Environment C161 ILO International Labor Organization Convention No. 161 concerning Occupational Health Services C169 ILO International Labor Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries CBD Convention on Biological Diversity CERD Committee on the Elimination of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights CSO Civil Society Organization DSPIR Driving forces, Pressures, States, Impacts and Reponses EBRD European Bank for Reconstruction and Development ECHR European Convention on Human Rights ECJ European Court of Justice ECmHR European Commission on Human Rights ECtHR European Court on Human Rights EEA European Environmental Agency EIA Environmental Impact Assessment EIR Extractive Industries Review EITI Extractive Industries Transparency Initiative EU European Union FAO Food and Agricultural Organization GATT General Agreement on Tariffs and Trade GHG Greenhouse gas HRC Human Rights Committee IACmHR Inter-American Commission of Human Rights

14 IACtHR ICCPR ICERD

List of Abbreviations and Acronyms

Inter-American Court on Human Rights International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Court of Justice ICSID International Centre for Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the former Yugoslavia IDB Inter-American Development Bank IEA International Energy Agency IFC International Finance Corporation IGOs Intergovernmental Organizations ILO International Labor Organization IMF International Monetary Fund IUCN International Union for Conservation of Nature MEAS Multilateral Environmental Agreements MEM Ministry of Energy and Mines of Ecuador MITs Multilateral Investment Treaties NCPs National Contact Points NGO Non-governmental Organization OAS Organization of American States OECD Organization for Economic Cooperation and Development OHCHR Office of the High Commissioner for Human Rights OP/BP 4.1 Revised Operational Policy and Bank Procedure on Indigenous Peoples PCA Permanent Court of Arbitration PSC Production Sharing Contracts SDNY United States District Court for the Southern District of New York TexPet Texaco Petroleum Company TNCs Transnational Corporations UDHR Universal Declaration on Human Rights UN United Nations UNDP United Nations Development Program UNDRIP United Nations Declarations on the Rights of Indigenous Peoples UNECE United Nations Economic Commission for Europe UNFCCC United Nations Framework Convention on Climate Change UNGA United Nations General Assembly US United States of America WCD World Commission of Dams WCED World Commission on Environment and Development WHO World Health Organization WSSD World Summit on Sustainable Development WTO World Trade Organization WWC World Water Council

List of Figures

Figure A.1: Figure A.2: Figure A.3: Figure B.1: Figure B.2: Figure B.3: Figure B.4: Figure B.5: Figure C.1: Figure C.2: Figure C.3: Figure C.4: Figure C.5: Figure C.6: Figure D.1: Figure D.2: Figure D.3:

Dynamic Interrelationship Between Environment and Human Well-Being Classification of Ecosystem Services Components and Determinants of Human Well-Being DSPIR Framework Global Driving Forces Influencing the Consumption of Natural Resources Pressures on the Environment Example of DPSIR Framework for Energy Demand Holistic Approach to Conservation Classification of Natural Resources Lifecycle of Natural Resources within the Economy Threats to the Environment Relating the Extraction of Natural Resources Extraction of Natural Resources in International Environmental Law Energy System and the Impact on the Environment Issues Surrounding Energy : Impact and Response Competing Interests in Relation to the Right to Property Fair Balance Components of the Right to Respect for Private and Family Life, Home and Correspondence

A.

Introduction

Environment, ecosystem services, human well-being and support mechanisms for a functioning environment have a specific function in the chain of dynamic interaction between environment and human beings (Figure 1.1). In fact, if the quality of one component were affected, reduced or eliminated due to natural phenomena or man-made actions or omissions, the remaining components would not be able to perform their functions, thereby affecting interactions within the system. Therefore, it is important to first characterize each of these elements in order to understand their complex relationship and the impact that the exploitation of natural resources may have on these components and their interactions.

Figure A.1: Dynamic Interrelationship Between Environment an Human Well-Being Source: Mc Neely and Mainka, Conservation for a New Era (2009) 17.

One crucial component of environment is ecosystems. They constitute the dynamic interactions and interrelations between living (biotic) components – microorganism, plants and animals – and non-living (abiotic) components and

18

Introduction

their environment.1 This dynamic complex of living and non-living elements functioning as a unit gives rise to the so-called ecosystems services which are the entirety of conditions and processes that contribute to the regeneration of biodiversity and the generation of goods and services which benefit life and the development of human beings.2 The Millennium Ecosystem Assessment classifies ecosystem services into four categories: supporting services, provisioning services, regulating services and cultural services (Figure 1.2).

Figure A.2: Classification of Ecosystem Services Source: Mc Neely and Mainka, Conservation for a New Era (2009) 17.

The first group of ecosystem services are supporting services. They are services obtained from long-term processes which permit the generation and regeneration of ecosystems required for the production of all other ecosystem services. Examples of such services are primary production, production of atmospheric oxygen (through photosynthesis), soil formation and retention, nutrient recycling, water recycling and the provisioning of habitats. For instance, the production of food requires soil formation, nutrient and water recycling.3 The second category encompasses provisioning services which are all goods generated from ecosystems, including: food and fiber ; fuel; genetic resources; biochemicals, natural medicines and pharmaceuticals; ornamental 1 IUCN and others, World Conservation Strategy (1980) s 1, Par. 7; Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 49; Birnie and others, International law & Environment (2009) 58; McNeely and Mainka, Conservation for a New Era (2009) 39 2 Daily, ‘Introduction: What are ecosystem services?’ in Daily (ed), Nature’s Services: Societal Dependence On Natural Ecosystems (1st edition, Island Press 1997); Robert Constanza and others, ‘The value of the world’s ecosystem services and natural capital’ (1997) vol 387 Nature 253 – 260, 253; McNeely and Mainka, Conservation for a New Era (2009) 39 – 40 3 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 59 – 60; McNeely and Mainka, Conservation for a New Era (2009) 40

Introduction

19

resources; and fresh water.4 The third group are the regulating services. They are benefits derived from a range of factors and processes within the ecosystems which adjust, control and manage ecosystems components and their interactions. The modification of any factor or process involved in the regulation of the ecosystem has a direct or indirect impact on the state and interaction of other environmental media. For example, water regulation depends on land cover. Indeed, the conversion of wetlands or the replacement of forests by croplands can change the water storage potential of the system. Important regulating services are: air quality maintenance, climate regulation, water regulation, human disease control, erosion control, water purification and waste treatment, biological control, pollination and storm protection.5 Some services which can be categorized either as supporting or regulating services. Soil retention and formation, e. g. influence on the one side the water quality ; on the other side, they also indirectly benefit people through the supply of food.6 Finally, the fourth category deals with cultural services. These are non-material benefits that people obtain from ecosystem in form of spiritual enrichment, cognitive development, reflection, recreation and aesthetic experiences including: cultural diversity, spiritual and religious values, knowledge systems, educational values, inspiration, aesthetic values, social relations, sense of location, cultural heritage values, recreation and ecotourism.7 A third element of the dynamic interrelationship between environment and human beings is human well-being. It is made up of five linked components: basic material needs for a good life including adequate livelihoods enough food and access to goods; health, including having a healthy physical environment; good social relations including social cohesion, respect, social recognition; personal security, including the access to natural and other resources, rule of law, safety of persons and possessions and living in an environment that is safe from natural and man-made disasters; and the availability of freedom of choice.8 These five dimensions interact in a complementary fashion to provide physical, social, psychological and spiritual fulfilment. A positive or negative change in one of the components often impacts on other components and on human beings. The health component, e. g., is linked to a healthy physical environment; 4 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 56 – 57 5 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 57 – 58; McNeely and Mainka, Conservation for a New Era (2009) 41 6 McNeely and Mainka, Conservation for a New Era (2009) 41 7 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 58 – 59 8 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 74

20

Introduction

therefore, a polluted environment considerably reduces the availability and quality of basic materials and as a consequence reduces people’s quality of life. Furthermore, the five key components of human well-being are influenced by two additional types of determinants which are expressed either in form of commodity inputs, most of them provided by ecosystem services such as goods and services, or in the form of mechanisms which provide conditions and access to such inputs such as access to resources (Figure 1.3). Under certain circumstances, key components may be both constituents of and means to human wellbeing. For example, health can be considered as a goal as well as the way to achieve other important components.9

Figure A.3: Components and Determinants of Human Well-Being

Through several mechanisms and decision making-processes, man not only impacts on issues relating to human well-being but also the environment. Socioeconomic factors, technological developments, policies, institutions and legal instruments constitute some of the multiple mechanisms that have either a negative or positive impact on the environment and people’s lives. Therefore, appropriate instruments, functioning institutions as well as clear and enforceable rules created on the basis of transparency and participation, contribute to the prevention of adverse consequences of environmental harms, to ensuring polluters are held liable for any environmental damage caused and to respecting human rights.10 In fact, well-defined property rights and transparent institutional structures constitute the basis for a long-term protection of ecosystems and their services, and for the realization of human rights. Furthermore, the access to and the right to use natural resources and services within ecosystems depend on the existence of institutions and on their degree of efficiency. Con9 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 73 – 74 10 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 81

Introduction

21

centration of power in a few hands and subsidies undermine the solidity of bodies responsible for the distribution of goods and services.11 According to the Millennium Ecosystem Assessment, in order to ensure transparent and functioning institutions as well as to enforce rights, the process of creating, revising and modifying institutions and rules, requires the support of six basic elements or ‘freedoms’, viz. participation, economic facilities, social opportunities, transparency guaranties, ecological security12 and protective security.13 These social, political, economical and ecological freedoms provide the structures that allow a sustainable interaction between man and the environment. Human activities give rise to environmental changes which in turn can have a positive or negative effect on goods and services provided by ecosystems, as well as on the development of human well-being. Ecosystem changes resulting from processes of disruption, overexploitation, pollution and depletion, e. g. have a significant impact on the availability and quality of goods and other services important for human well-being (provisioning functions). Similarly, negative changes in regulating functions on ecosystems such as water purification or the stabilization of local or regional climate, affect substantial components of human well-being and can result in human rights violations.14 For example, the human right of access to water and the human right to health can be jeopardized by the impact of human actions or non-actions on the quantity and quality of water or the purification cycle of this resource. These examples illustrate the extreme symbiosis and interdependence between the environment and human beings. Human well-being depends on the capacity of ecosystems. However, human beings have at the same time the capacity to change environmental conditions which can have serious repercussions on the environment and regenerating capacity. In this context, the exploitation of natural resources for energy production is one of the many factors with a direct or indirect impact on ecological systems and the performance of human rights. In a globalized world, energy constitutes an essential element for human development and economic growth. Resources necessary for the generation of 11 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 82 12 According to the Millennium Ecosystem Assessment, ‘Ecological security’ is conceptualized as ‘the minimum level of ecological stock, […] defined by respective communities through an open and participatory process, that is required to provide the supporting services needed to ensure the sustainable flow of provisioning, regulating, and cultural ecosystem services’ in Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 83 13 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 82 – 83 14 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 76 – 77

22

Introduction

energy are mainly raw materials, whether renewable or non-renewable, as well as environmental media such as soil or water. To be useful to an economy, these resources follow a conversion cycle. The first stage in this cycle is their extraction. This process of gaining access to and extracting the resources varies according to the type of energy that is to be generated with them. While the generation of hydropower requires, for example, the construction of dams and subsequent flooding of vast tracts of land, the generation of biofuels is based on the cultivation of feedstock which mainly requires environmental media such as water and soil. In the last sixty years, energy demand has constantly increased due to factors such as population growth and economic development. Projections foresee that the consumption of energy is expected to grow by 56 percent between 2010 and 2040.15 This growing energy demand has exerted significant pressure on natural resource stocks as well as on the quality of the environment, which in turn has had negative effects on the life and access to resources by people living near the extraction areas. In this scenario, the interest, rights and obligations of several stakeholders come into play. The extraction of energy resources can lead to a conflict of interest between states, transnational corporations, individuals and international organizations. On the one hand, States have the responsibility to strengthen the economic development of their citizens. Accordingly, energy resource-rich countries encourage the extraction of such resources to increase their revenue and cash flow. For this purpose, States create adequate conditions to stimulate investment by private corporations which have the know-how and technology to carry out extraction operations. On the other hand, States have the international obligation to respect, protect and fulfill human rights. For its part, transnational corporations are interested in investing in cost-effective projects with the aim to increase their profits. To ensure their investment, transnational corporations require States to protect their capital and know-how through the adoption of a number of safeguards and mechanisms. International organizations also constitute key stakeholders in extraction projects. In particular, financial international institutions have established in their policies conditions under which a project will be carried out in order to obtain funding. Other stakeholders involved in the extraction of energy resources are individuals and vulnerable groups whose rights can be compromised by extraction projects. People depend on access to natural resources and on a healthy environment to develop their social, political and economic lives. Unfortunately, the exercise of their rights has been compromised by the impact of extraction operations on the environment. In this context, all stakeholders exercise a strong influence on environmental conservation and the realization of human rights. 15 U.S. Energy Information Administration, International Energy Outlook 2013 (2013)

Introduction

23

Based on these considerations, this study will attempt to answer the question whether there is a causal link between the realization of human rights and conservation of the environment in the context of energy resource extraction. Accordingly, the main objectives of the study are to demonstrate on the one hand that the fulfilment of human rights strongly depends on the quality of the environment and on access to natural resources. On the other hand, it aims to show that negative environmental effects arising from extraction operations jeopardize this delicate relationship. For this purpose, the study will elucidate the interaction between mechanisms developed within the framework of human rights and international environmental law to ensure the protection of the environment and human rights from the negative effects of the extraction of renewable and non-renewable energy resources. The hypotheses to be proven in this study are: 1) The quality of the environment and access to natural resources are a precondition for the realization of human rights. 2) Extraction operations have a direct influence on the environment and ecological interrelations. In other words, the extraction of energy resources evidences a direct cause-and-effect relationship between human activities and the environment. 3) The environmental impact from extraction operations affect the realization of substantive rights such as the right to property, to respect for private life and family and home, to life, to an adequate standard of living, to health and to water. 4) Procedural rights created within the framework of international environmental law constitute mechanisms which ensure that extraction projects in the energy sector are developed in accordance with the rule of law, transparency and a respect for human rights. The relevance of the findings of the study is to achieve transparency in the causeeffect relationship between environmental impacts arising from extraction operations and the exercise of human rights as well as to make all stakeholders involved in an extraction project aware of the tools and mechanisms to prevent environmental damage and human rights violations in the energy sector. For the development of this study, scientific legal methods were applied. Tools used for the assessment of legal literature were, among others, methods of applying and interpreting provisions such as analogy and teleological reduction, concretization of legal norms, and comparative methods. With regard to literature, the primary literature used in this study comes from international agreements, covenants and declarations in the area of environmental law and human rights. Important sources of this study were rulings by the InterAmerican and European Human Rights Courts and the African Commission on

24

Introduction

Human and Peoples Rights. These instances have dealt in several cases with the consequences that the development of industrial and extraction activities has on the effective realization of human rights. Therefore, such rulings were subject to a comparative analysis in order to prove the dependency between the realization of human rights and the environmental quality. In addition, reports of international organizations are incorporated as expert sources. With regard to secondary literature, the study draws on comments, manuals, legal journals, monographs and dissertations. This study covers three main issues. The first issue deals with the theoretical framework within which the study is developed. Accordingly, Chapter B pays attention to the definition, characteristics and classification of human rights and to the legal nature of human rights obligations. The objectives of this analysis are to draw up a definition of human rights which will guide this study, as well as to demonstrate whether a healthy and clean environment is a precondition for the realization of human rights. In addition, environment and conservation will be the subject of an analysis in Chapter B. Here, it is important to define the term environment and to determine the cause-and-effect relationship between human activities and the environment. Relating to the second issue, the extraction process of renewable and non-renewable energy resources and its impacts on the environment will be elucidated. In Chapter C, special attention is given to the concept of natural resources, the process of the extraction of energy resources, the ownership of such resources and the regulation of energy generation. The aim of this analysis is to establish to what extent environmental impacts arising from extraction operations affect the life and living conditions of individuals and communities. In relation to the third issue, the link between the conservation of the environment and the realization of human rights will be analyzed. In Chapter D, substantive human rights and procedural environmental rights will be explained in the light of the environmental impact caused by the different extraction activities in the energy sector. This Chapter addresses those human rights whose implementation depends on environmental protection such as the right to adequate living standards, the right to health and the right to water. Furthermore, the Chapter will deal with those human rights which have served as a legal foundation for complaints before regional human rights courts when the environmental impact caused by acts or omissions of a state has resulted in human rights violations. This is the case with the right to life, the right to respect private and family life and the right to property. On the other hand, procedural rights – the right to participation, the right of access to justice and the obligation to carry out Environmental Impact Assessments (EIAs) – will be examined. These safeguards, created within international environmental law, will be explained in the light of a human rights context when preventing and avoiding environmental damage. To conclude this Chapter, the legal battle be-

Introduction

25

tween Texaco Oil – Chevron and Ecuadorian citizens will be elucidated. The analysis of this case will be the basis for discussing the extent of corporate responsibility and accountability of Transnational Corporations (TNCs) for environmental damage and human right violations. Finally, conclusions and recommendations will be given in Chapter E.

B.

Legal Foundations of the Link Between Human Rights and Conservation

This Chapter aims at determining the legal basis of the link between human rights and the environment. In order to achieve this aim, the area of human rights will be analyzed in the first part of the Section. This requires creating a definition of human rights to guide the development of this investigation. Next, it will be attempted to demonstrate that a healthy and clean environment is a precondition for realizing civil and political rights as well as economic, social and cultural rights. Additionally, the human rights foundations of this investigation will be laid by analyzing the sources of international law. In the second part of the Section, the framework of international environmental law will be addressed. For this purpose, the concept of environment and the elements that create the interrelation between environment and human well-being will be clearly defined after which the cause-and-effect relationship between human activities and the environment will be looked at. This will be helpful in the next stage of the investigation to illustrate how extractive activities affect the environment and realization of human rights. Finally, a set of rules and principles of international environmental law will be laid down.

I.

Human Rights in International Law

1.

Objective

In the early stages of the development of a human rights protection system, the international community established, as an essential goal of human rights, the protection of human dignity from violations by state authorities.16 Afterwards, this perspective which conceptualized human rights as a right to defend against the state’s actions evolved into a new concept that goes beyond the exercise of 16 Cassese, International Law (2005) 397; Steiner, ‘International Protection of Human Rights’ in Evans (ed), International Law (2006) 769

28

Legal Foundations of the Link Between Human Rights and Conservation

‘pressure against states to stop their violations’ and rather aims at preventing such violations in the first place.17 So far, the international human rights protection system has counteracted the causes of violations by drawing the attention of the states on the human rights situation through human rights monitoring bodies or by prosecuting such states for breaches of human rights before international tribunals. At the present time, the growing economic and political interdependence of states in the era of globalization and the new threats for the international community – global terrorism, scarcity of resources and an increasing number of natural disasters – pose new challenges to the human rights protection system. As a result, the new objective of human rights is to transform the political, social and economic structures of the states. This can be achieved by strengthening the participation of non-states, by holding them accountable for human rights violations, by promoting interstate cooperation and by assuring compliance with national court rulings relating to human rights issues.18

2.

Definition

In the context of international law, the concept of human rights has so far never been defined. However, several authors have attempted to provide a definition from different perspectives. Kälin and Künzli, e. g., proposed a definition of human rights by delineating six distinctive characteristics of human rights.19 First, human rights allow right-holders to make claims against states for failing in their duty to promote, protect and perform before international instances. Second, the primary concept of human rights embodies the protection of individuals. Furthermore, during the process of developing human rights, this protection has been extended to other subjects such as legal entities and minorities. Third, human rights are basically invoked against states. States are obliged to respect, protect and meet human rights. Therefore, when states do not meet these obligations, they should be held accountable for their actions or failures to act resulting in the violation of human rights. Fourth, human rights are applicable both in times of peace and war. In case of a national emergency, states may temporarily abrogate specific human rights under certain conditions and circumstances previously defined by law. Fifth, human rights are internationally acknowledged and guaranteed. Regardless of the content or function of human rights, this characteristic draws a distinction between human rights and 17 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 39 18 Steiner, ‘International Protection of Human Rights’ in Evans (ed.), International Law (2006) 769 19 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 36 – 37

Human Rights in International Law

29

constitutional or fundamental rights. Under international law, human rights allow the beneficiary to claim his or her rights not only before a national court but also before supranational bodies. Sixth, the cornerstone of human rights protection is the acknowledgement by the states that human rights are necessary to ensure the dignity and worth inherent in human beings. On the basis of these characteristics, Kälin and Künzli defined human rights as internationally guaranteed provisions which enable individuals to make claims against the state in order to protect fundamental aspects of human beings and a person’s dignity during both peace and war.20 Human rights can also be conceptualized from a descriptive, philosophical and legal perspective. Novak proposes three definitions of human rights. The first defines human rights as subjective rights that enable individuals to live according to the principles of freedom, equality and human dignity. Another concept stems from the classification of human rights. Accordingly, human rights are the sum of all civil, political, economic, social, cultural and collective rights anchored in international and regional instruments as well as in national constitutions. From a legal and philosophical point of view, human rights constitute a unique value system in international law which is universally recognized and contains elements of liberalism, democracy, equality, ‘empowerment’, participation, social justice, rule of law and ‘good governance’.21 Another definition of human rights can be deduced from three pillars on which the international human rights protection system rests. These primary elements are: the recognition of individuals as partial subjects of international law, the limitation of the absolute sovereignty of the state, and the contribution of human rights to strengthening international relations. Following World War II, the international community acknowledged the importance of protecting individuals from the intervention of state authority. As a consequence, individuals acquired the status of partial subjects of international law. This in turn enabled individuals to appeal to international or national instances when their rights were violated by the state. This fundamental idea of human rights also underpins the subsequent development of international relations. A human rights protection system ensures the fundamental interest of the international community by establishing an objective order, the so-called order public. In this context, human rights can be conceptualized as international rules which protect individuals from interference by states authorities with their rights and freedoms within the framework of peaceful and friendly relations between states.22 20 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 37 21 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 13 – 14 22 Herdegen, Völkerrecht (2009) 369 (1); Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 17 – 21

30

Legal Foundations of the Link Between Human Rights and Conservation

As can be observed, the concept of human rights can be approached from a number of different perspectives. In any event, the concept of human rights employed in the development of this work is that human rights are international rules which protect individuals from interference by the state and third parties and cover fundamental aspects of people’s lives such as freedom, equality and dignity.

3.

Characteristics

Human rights can be characterized by two different approaches. The first categorization of human rights draws on the roots of the 1993 Vienna Declaration and Action Programme. In the preamble of this international instrument, the international community recognized ‘that all human rights derive from the dignity and worth inherent in the human person’. On this basis, human rights have been characterized as universal, indivisible and interdependent and interrelated.23 In fact, the 1945 Charter of the United Nations had previously laid the foundations for the universality of human rights. Article 1 of the Charter states that one of the purposes of the United Nations is to achieve ‘international cooperation by promoting and encouraging respect for human rights and fundamental freedoms for all […].’ However, these attributes, in particular the universality of human rights, have been sharply criticized. The background to such criticism rests on the different approaches and interpretations of the content of the rights. For instance, the meaning and content of certain rights such as the non-discrimination principle, differ from Western to Middle Eastern countries. Another hurdle for the recognition of a universal validity of human rights is in limiting the application of human rights. In democratic states, for example, the freedom of expression represents the cornerstone of the political opinion-making process of the population and strengthens democratic values and the rule of law. By contrast, socialist states limit this right through censure mechanisms or the state’s control bodies. Finally, the role played by religious and cultural conceptions of the population cannot be underestimated.24 Beyond the criticism, international human rights agreements have already identified those universal rights which apply to all persons without time limit and among changing economic, social and political scenarios under the umbrella of a crosscultural dialogue between societies.25 These rights are among others the right to 23 UNGA, The 1993 Declaration and Programme of Action, Par. 5; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 22 24 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 24 25 Weber, Menschenrechte (2004) 1

Human Rights in International Law

31

life, the right of non-discrimination and the freedom of expression. In this context, universal rights basically ensure individual freedoms and the physical integrity of individuals while at the same time contributing to lay down minimal economic and social standards as well as social justice and rule of law.26 Another approach for the characterization of human rights is based on the nature of their protection. This characterization, proposed by Steiner, show up on the one hand the weakness of the international human rights protection system in comparison with the ordinary sanctions of national legal and political structures and to other international regimes. On the other hand, it demonstrates ‘the need for a different and expanded conception of what the protection of human rights amounts to through the universal human rights system’.27 The definitions of human rights given above highlight the protection of individuals against the intervention of states as the fundamental function of a human rights protection system. The characterization of Steiner seeks to go beyond the conception of human rights that focuses only on the consequences of a violation rather than on understanding the political, economic and cultural contexts in which the breach of human rights takes place.28 The first characteristic, proposed by Steiner, is that ‘human rights violations generally occur within and only affect people within a single state’. In international law, states have international obligations not only regarding other states and the international community but also with regard to foreign or national persons and legal bodies. In this connection, violations against international law require firstly an extraterritorial conduct of the delinquent state against another state or its nationals. Such violations can take place either outside the territory of the delinquent state – military intervention against the territory of the other state, e. g. – or within its jurisdiction – the breach of an investment law agreement. Nevertheless, international law envisages other violations which actually do not require an extraterritorial or foreign element for a state to fail in its international obligations on private persons. Such breaches against international law constitute those against human rights. Consequently, nationals of the delinquent state can, by way of international treaties and customary law, prosecute their own state due to violations of their rights whose effects are felt within its territory.29 26 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 38; Nowak, Einführung in das internationale Menschenrechtssystem (2002) 39 27 Steiner, ‘International Protection of Human Rights’ in Evans (ed), International Law (2006) 769 28 Steiner, ‘International Protection of Human Rights’ in Evans (ed), International Law (2006) 769 29 Steiner, ‘International Protection of Human Rights’ in Evans (ed), International Law (2006) 769

32

Legal Foundations of the Link Between Human Rights and Conservation

The second characteristic is that ‘human rights violations often have a systematic character and reflect deeper aspects of a state’s political structure’. Stein explains that human rights violations may have two different effects depending on the state’s political structure. On the one hand, human rights violations which occur in well-established democracies are likely to ‘address issues of undeniable legal and moral significance that may deeply engage the population and have important state-wide effects […]’. Consequently, they do not jeopardize the foundations of the social, political or economic structures of a state. In contrast thereto, there are authoritarian states in which systematic human rights violations constitute an important instrument for maintaining the prevailing political structure and ideology. In that sense, pressures exerted by other states and international organizations on the delinquent state over human rights violations could have profound consequences on the structures of the delinquent state and transform the basic nature of the country.30 The third characteristic explains ‘the extensive reach of human rights duties to non-state (private) actors’. This feature is related to the legal nature of humanrights obligations and the stakeholders involved. The classical international law was defined as a legal system which rules sovereign relations between subjects of international law.31 Human rights break with this classical conception since this field of international law rules the relationship between duty-bearing states and rights-bearing non-state actors. As a result, owing to human rights, individuals achieve the status of partial subject of international law which on the one hand protects them from the intervention of the state authority and on the other hand obliges them to indirectly respect human rights. In this connection, states have the primary duty ‘to respect human rights by not interfering or acting inconsistently with them.’32 However, other stakeholders at the international or national level are also likely to infringe the right of individuals. Since non-state actors are not considered subjects of international law, they are not directly charged with respecting human rights. International human rights treaties have addressed this limitation by compelling states to prevent and protect rightholders from interference by non-state actors by taking all appropriate measures to regulate the conduct of such actors. Moreover, non-state actors can be held

30 Steiner, ‘International Protection of Human Rights’ in Evans (ed), International Law (2006) 770 – 771 31 Herdegen, Völkerrecht (2009) 2, 3 (3) (4); Vitzthum, ‘Begriffe, Geschichte und Rechtsquelle des Völkerrechts’ in Vitzthum (ed), Völkerrecht (2010) 6 (5) 32 Steiner, ‘International Protection of Human Rights’ in Evans (ed), International Law (2006) 772

Human Rights in International Law

33

liable under international tort or criminal law for committing massive human rights violations such as war crimes, crimes against humanity or genocide.33 From the characteristics described above, two conclusions can be drawn in relation to the extraction energy resources. First, a human rights protection system rules not only the relations between the state and individuals, but also relations between non-state actors. Different state and non-state stakeholders are involved in extracting natural resources. Their interests and objectives frequently collide, thereby giving rise to conflicts and human rights violations. In this connection, the obligation of states to protect individuals from interference by third parties acquires a decisive meaning, e. g. when examining the activities of foreign investors under international investment agreements. In addition, the duty of states to take ‘appropriate measures’ encourages the participation of civil society, international organizations and non-governmental organizations (NGOs) in the development of political, social, economic and legal instruments which can range from developing policies to creating or modifying national legislation. The second conclusion relates to the fact that human rights violations can also affect the economic, social and political structure of states as well as interstate relations. While it is true that the extraction of natural resources is fundamental for economic growth, extractive activities can be substantially founded on human rights violations in commodity-exporting countries. This in turn jeopardizes current economic structures. In fact, price volatility of raw materials due to social conflicts reflects the strong dependence of economic development and supply sources on the stability of political structures in rawmaterials producing countries. As a result, steady economic growth is linked to the sustainable extraction of natural resources as well as to the obligation of the state to respect, protect and meet human rights.

4.

Classification

The 1948 Universal Declaration on Human Rights establishes a first categorization of human rights. The Declaration lays down a catalogue that encompasses both civil and political rights (Art. 3 – Art. 21) and economic, social and cultural rights (Art. 22 – Art. 27).34 In 1951, Western states formalized their demand for the separation of both types of rights in two different covenants. As result, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights were launched in 33 Steiner, ‘International Protection of Human Rights’ in Evans (ed), International Law (2006) 772 – 773 34 Thürer, Menschenrechte (2009) 30

34

Legal Foundations of the Link Between Human Rights and Conservation

1966.35 The major argument for this categorization was based on the degree of international accountability of a state to accomplish, implement and enforce such rights. On the one hand, civil and political rights are substantive by nature; as a consequence, they can be legally enforced and are applicable immediately. On the other hand, economic, social and cultural rights are the so-called ‘programmatic rights’ whose implementation is progressive since their compliance depends on specific circumstances such as the availability and allocation of resources within a country. Therefore, such rights do not encompass directly enforceable international obligations and are not subject to claims.36 For instance, the immediate applicability of the right to adequate standards of living or the right of all people to freely dispose of their natural wealth and resources could put enormous economic and political pressure on states. Nevertheless, it is undeniable that the fulfilment of political and civil rights depends on the realization of economic, social and cultural rights and vice versa. Despite this distinction which has shaped the development of human rights, the idea of the complementary nature of civil and political rights with economic, social and cultural rights has been taken up by the international community in the last few decades. The 1993 Vienna Declaration and Action Programme is the first international agreement after the Cold War which acknowledges the interdependence and interconnection between the enjoyment of civil and political rights and the realization of economic, social and cultural rights.37 Apart from this categorization, human rights have been classified according to a chronological perspective. In the 1970s, Czech human rights expert Karel Vasak introduced the term ‘Human Rights Generation’. The background of this classification has been explained from a chronological perspective based on the time of emergence of human rights in the constitutions of states. According to Vasak, this categorization fairly reflects the political and ideological debate between North and South as well as East and West during the Cold War.38 Other authors named this categorization ‘Human Rights Dimensions’ to highlight the simultaneous interaction of human rights.39 Three generations or dimensions derived from this classification. 35 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 92 – 93 36 Sand, Principles of International Environmental Law (2003) 297; Törnudd, Finland and the international norms of human rights (1986) 9 37 Herdegen, Völkerrecht (2009) 372 (8); Nowak, Einführung in das internationale Menschenrechtssystem (2002) 93; Törnudd, Finland and the international norms of human rights (1986) 10; UNGA, The 1993 Declaration and Programme of Action, Par. 5 38 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 35; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 37 – 38 39 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 35

Human Rights in International Law

35

The first generation comprises: safeguards of personal liberties and special goods; basic equity safeguards; as well as, democratic rights to participation.40 Historically, these rights were advocated by Westerns states during the Cold War. In their view, civil and political rights were conceived as defensive rights against the interventions of the state. They constituted real human rights since their subjective element is clearly defined and they provide a way to claim their implementation before national or international courts. Accordingly, this conception reflects the vertical dimension of relations between state and individuals by providing them with merely a defensive claim against the state. However, it should not be forgotten that the realization of civil and political rights likewise imply compliance with certain standards.41 As a result, the goal of the second generation of human rights is to fill the gap left by the first generation. The second generation was promoted by the Socialist countries during the Cold War. According to Nowak, the Socialist countries supported the conception that economic, social and cultural rights are needed to counterbalance the gap between the capitalist interest and the legitimate aspirations of their peoples.42 In this context, states are obliged to progressively ensure that all citizens have access to economic and social standards for their development.43 This, in turn, strengthens the capacity of individuals to struggle against the encroachment of state authorities. In fact, the protection of free access to paid work, education, food or for protection from discrimination and access to material benefits place individuals in a better position to enforce their civil and political rights.44 In addition to this generation, a third generation has come out of the decolonization process. The legal foundation of the third generation of human rights is found in Article 28 of the UDHR which states that ‘everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’ Nevertheless, the third generation emerged effectively in the second half of the 20th century as a response of the precarious human-rights situation in many parts of the third world. The political independence achieved by the former colonies was not enough to ensure the promotion, protection and fulfilment of human rights. Consequently, the aim of these so-called solidarity or group rights is to achieve a balance between developed and developing countries.45 With regard to the legal content of collective rights, their distinctive 40 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 36; Herdegen, Völkerrecht (2009) 371 (6); Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 38 41 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 36 42 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 36 43 Herdegen, Völkerrecht (2009) 371 (6) 44 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 38 45 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 36

36

Legal Foundations of the Link Between Human Rights and Conservation

characteristic is that both individuals and clearly defined groups are protected; yet, this feature has caused reservations at international level and within the doctrine of international law since their legal nature – content of the obligations on duty bearers and right holders – is still not clearly defined. Solidarity rights have thus far found their way into modern international law in the form of the 1981 African Human Rights Charta.46 Examples of third-generation rights are: the right to development, the right to self-determination, the right to permanent sovereignty over natural resources and the right to a clean and healthy environment. Both first generations of human rights have their roots in the approaches during the Cold War. While political and civil rights seek to prevent state interference, economic, social and cultural rights aim to provide adequate conditions for the development of the individual. Although both rights are grouped into two main categories, their realization is linked to their mutual enforcement. An effective exercise of civil and political rights is possible only if individuals have adequate living conditions. This mutual correlation is crucial to the extraction of natural resources. To illustrate, the right to life can only be ensured by guarantying adequate living standards, access to clean water and adequate housing.

5.

Legal Nature of Human Rights Obligations

The recognition that states have an obligation not only to refrain from interfering in the rights of individuals (civil and political rights) but also to ensure the provision of positive social benefits as well as the resulting awareness of the indivisibility and interdependence of human rights (economic, social and cultural rights) have given rise to the consolidation of international duties of states to respect (right to defence against intervention by state authority), to ensure and meet (participation rights) and to protect individuals against third parties.47 Consequently, independent of their legal nature human rights encompass both positive and negative obligations.48

46 Herdegen, Völkerrecht (2009) 371 (7); Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 38 47 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 36, 62 48 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 110

Human Rights in International Law

a.

37

Obligation to Respect

Every human right contains a negative obligation. This means that states have the duty to abstain from any acts that could adversely affect human rights. This obligation to respect reflects both approaches. On the one hand, states are compelled to refrain from state intervention with the rights of individuals unless a legal reservation or the authorization to intervene is laid down by law. On the other hand, individuals are given the right to claim against such interventions.49 With the aim to protect the interest of the public and on the basis of the principle of sovereignty, international law grants states the power to set limits to human rights through national constitutions or legislation. As a matter of fact, there are only a few human rights whose applicability is absolute while the majority can be limited by the state or become the subject of intervention by state authority, provided that such limitations are imposed only in the specific cases and requisites sanctioned by law.50 This doctrine has developed four models to determine how far states can limit their obligation to respect human rights. The first model covers all human rights whose applicability cannot be reduced or limited by state authority. These human rights are the prohibition of genocide, the prohibition of slavery and the prohibition of torture. Because of the importance of the assets protected by these safeguards, their applicability cannot be constrained by a state and must be guaranteed even in time of war.51 For instance, Article 3 of the European Convention on Human Rights states that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ Consequently, the European Court of Human Rights (ECHR) decided in case Soering vs the United Kingdom that ‘Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 in time of war or other national emergency. This absolute prohibition of torture and of inhuman or degrading treatment or punishment under the terms of the Convention shows that Article 3 enshrines one of the fundamental values of democratic societies that make up the Council of Europe.’52 The second model addresses those human rights which in spite of their absolute applicability, the state may restrict only in specific cases established in human rights agreements and a country’s constitution so that the intervention of the state is legally justified and does not constitute a human rights violation. The principle aim of such an exemption clause is to protect other fundamental legal assets. For instance, international law allows the states to limit the right to life in cases of military intervention; still, a state may not make attempts on the life of its civilian 49 50 51 52

Nowak, Einführung in das internationale Menschenrechtssystem (2002) 62 – 63 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 113 – 114 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 114 ECtHR, Case Soering vs the United Kingdom App no 14038/88 (1989), Par. 88

38

Legal Foundations of the Link Between Human Rights and Conservation

population. Other examples of this model are anchored in Article 8 (3) (a) and Article 6 (2) ICCPR.53 Both civil rights and liberties and economic, social and cultural rights ensure the autonomy of individuals in a society. Consequently, states are called on to respect such safeguards by refraining from any state intervention. However, this limitation imposed on states is not absolute. Human rights instruments54 empower states to set limits on these rights as long as they meet three fundamental requisites, viz. an adequate legal foundation, a legitimate aim and the proportionality of the intervention.55 To illustrate, Article 4 ICESCR states: ‘the states and parties to the present Covenant recognize that, in the enjoyment of those rights provided by the state in conformity with the present Covenant, the state may subject such rights only to such limitations as are determined by law only and in as far this may be compatible with the nature of these rights and has its only purpose to promote general welfare in a democratic society.’

The fourth model addresses the prohibition of arbitrary intervention56. The Human Rights Committee (HRC) focused its attention on the definition of ‘arbitrariness’ and determined that this notion is to be interpreted more broadly than the mere infringement of the law in order to mainstream ‘elements such as inappropriateness and injustice’. In this context, the Committee established two relevant requirements that determine arbitrariness: the proportionality and the reasonableness of the intervention by state authority.57 According to General Comment 16 on Article 17 of the ICCPR, this means that even interference allowed by the law should be based on the provisions, be compatible with the objectives of the Covenant, be proportional to the desired end and necessary in the circumstances of a given case.58 Consequently, the intervention of state authority should not be disproportionate to the requirements of law enforcement in the circumstances of the given case.59 Finally, Nowak makes a relevant comment on the fact that states increasingly leave the implementation of human rights to the market. In this connection, the privatization and outsourcing of core strategic areas are modalities which play 53 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 115 – 117 54 Art. 12 (3), 18 (3), 19 (3), 22 (2) of the ICCPR; Art. 9 (2), 10 (2), 11 (2) EHRC; Art. 2 Additional protocol Nr. 4 ECHR; Art. 12 (3), 13 (2), 15, 16 (2), 22 (2) ACHR; Art. 11, 12( 2) African Convention on Human and Peoples Rights; Art. 30 (2), 32 (2), 35 (2) Arab Charter on Human Rights 55 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 114 56 Provision relating ‘arbitrary intervention’ is given in Arts. 6 (1), 9 (1), 12 (4), 17 (1) ICCPR 57 HRC, A vs Australia (1997) no 560/1993, Par. 9.2 58 HRC, General Comment No 16 The right to respect privacy, family, home and mail, and the protection of honor and reputation (Art. 17) (1988), Par. 4; HRC, Toonen vs Australia (1994) no 488/1992, Par. 8.4 59 HRC, Pedro Pablo Camargo vs Colombia (1985) no 45/1979, Par. 13.3

Human Rights in International Law

39

an important role in broadening and improving the capacity of the state to provide goods and services to its population. However, this could also mean that vital legal assets protected by human rights may be affected or jeopardized by third parties. Consequently, although the possibility of state intervention in the rights of individuals is reduced, the duty of the state to ensure, protect and or meet human rights increases.60

b.

Obligation to Ensure and Meet Human Rights

In General Comment 31 on the Nature of the General Legal Obligations imposed on state parties to the ICCPR, the Human Rights Committee outlines the content of the obligation to ensure and meet human rights and establishes that such duty includes all ‘legislative, judicial, administrative, educational and other appropriate measures’ whose purpose is the realization of human rights.61 From this functional definition, three characteristics of the obligation to ensure and meet can be deduced. First, the obligation to ensure is a positive duty. This means that states are called on to undertake any measures or actions to ensure the performance of human rights. Second, this obligation is preventive in nature since the measures undertaken basically aim at the creation and development of facilities and favourable conditions for the realization of human rights.62 Finally, another important characteristic of the obligation to meet human rights is its justifiability. Although the provision of social benefits depends on the availability of resources and on the discretionary power of the states, according to Novak it is necessary that an objective process (impact assessment) takes place so that a judicial or quasi-judicial control at national or international level determines if a state meets its obligation to make the necessary resources available.63 States can choose between different legal, institutional and procedural measures to perform their obligations.64 With regard to legal measures, legislation currently plays a fundamental role to ensure the effective exercise of various ‘human rights. In that sense, states are called on to adopt all relevant legislation for the achievement of the purpose enshrined in human-right safeguards. Furthermore, it is important that national legislation be complemented 60 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 110 – 113; Nowak, Einführung in das internationale Menschenrechtssystem (2002) 62 61 HRC, General Comment No 31 (80) Nature of the General Legal Obligation imposed on states Parties to the Covenant (2004), Par. 7; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 111 62 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 62 63 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 63 – 64 64 Kälin/Künzli, Universeller Menschenrechtsschutz, (2008) 127

40

Legal Foundations of the Link Between Human Rights and Conservation

by the development and implementation of policies and action plans to allow for the full materialization of national legislation.65 In addition, the creation and development of institutional facilities are likewise an important cornerstone for meeting human rights obligations. Institutional measures constitute the basis for the implementation and enforcement of human rights. For instance, Article 2 (3) (1) of the ICCP66 clearly states that access to an effective judicial remedy is ensured when the state provides legal protection by means of competent judicial, administrative or legislative authorities. Accordingly, the possibility of individuals to claim their rights depends on the establishment of a functioning legal system.67 Apart from this, states are called on to provide social benefits, which can take the form of either of money, goods or services. These positive obligations are especially important for the accomplishment of those human rights whose central point of protection depends on the supply of such benefits. Examples of such human rights are the right to gratuitous legal assistance68, or the right to food or health. Even freedom of expression and freedom of assembly require that the state make available certain conditions and facilities (e. g. public places for demonstrations) to ensure the effective exercise of such rights.69 The scope of the effective realization of the obligation to ensure and meet human rights depends on a set of external factors which sometimes exceed the capacity of the state. Such factors are e. g. example governmental prioritization (political programs), the availability of resources, the level of economic and social development as well as national legislation. All these factors play an important role when states decide which measures best serve the effective realization of human rights.70 However, it can also be observed that oftentimes states do not have the capacity to effectively meet their obligation to ensure human rights and that the provision of social services is entrusted to the private sector. It is precisely in this connection that states are called on to ensure access to these benefits by vulnerable groups in society in such cases.71

65 Kälin/Künzli, Universeller Menschenrechtsschutz, (2008) 127 66 Art. 2 (3) (1) ICCPR states: ‘To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity ; to ensure that any person claiming such a remedy shall have his rights thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the state, and to develop the possibilities of judicial remedy ; (…)’ 67 Kälin/Künzli, Universeller Menschenrechtsschutz, (2008) 127 68 Art. 14 (3) (4) ICCPR and Art. 6 (3) (c) European Human Rights Convention 69 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 127 – 128 70 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 111 – 127 71 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 62

Human Rights in International Law

c.

41

Obligation to Protect

In terms of enforceability, it is important to determine the author of a human rights violation. Not only states (vertical level) but also individuals (horizontal level) and natural or man-made disaster are likely to jeopardize the exercise of human rights. In this connection, states have a positive obligation to protect individuals as well as core interests enshrined in human right safeguards not only from violations by third parties but also from current or imminent adverse effects due to natural or man-made disasters.72 Human rights protection systems regard individuals as partial subjects of international law. This means that in this state-individual relationship, due to their protection duty, states are the party responsible for human rights violations by third parties while individuals are entitled to claim against the state on the basis of their right to protection.73 On the other hand, it must not be overlooked that in international criminal law, individuals can also be held accountable for serious and systematic human rights violations.74 At the international level, the most important international and regional human rights instruments75 contain provisions guarantying either explicitly76 or implicitly77 the obligation of the state to protect the right of individuals from the consequences of actions or omissions by third parties.78 Likewise, international monitoring bodies also stress the obligation of the state to protect. In fact, in the case Delgado Pa¦z vs Colombia, the HRC corroborated the duty of the state to provide individuals with protective measures guarantying their right to claim safety from intervention by third parties.79 Furthermore, in its General Comment 31 on Art. 2 (1) of the ICCPR, the HRC confirmed the obligation of the state to protect by stating that: 72 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 111, 118 – 120; Nowak, Einführung in das internationale Menschenrechtssystem (2002) 65 – 66 73 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 111 74 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 66 75 Art. 2 (1) and (2) of the ICESCR, Art. 1 ECHR, Art. 1 ACHR, Art. 1 African Convention on Human and Peoples Rights 76 The right to life: Art. 6(1) ICCPR, Art. 2(1) ECHR, Art. 4(1) ACHR, Art. 5(1) African Convention on Human and Peoples Rights; the right to privacy, family, home and correspondence: Art. 17 (2) ICCPR; the right to family : Art. 23 (1) ICCPR; right of the child to be protected from economic exploitation and from being forced to perform any work: Art. 34 (3) Arab Charter on Human Rights 77 The prohibition to physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment: Art. 8 (2) Arab Charter on Human Rights; the right to security : Art. 9(1) ICCPR, and Art. 5 (1) European Convention on Human Rights, Art. 7 (1) AMRK, Art. 6 African Convention on Human and Peoples Rights, Art. 14 (1) Arab Charter on Human Rights 78 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 119 79 HRC, Delgado Pa¦z vs Colombia (1990) no 195/1985, Pars. 5.5, 5.6, 6

42

Legal Foundations of the Link Between Human Rights and Conservation

‘[…] the positive obligations on state parties to ensure covenant rights will only be fully discharged if individuals are protected by the state, not just against violations of covenant rights by its agents, but also against acts committed by private persons or entities that could impair the enjoyment of covenant rights in so far as they are amenable to application between private persons or entities. (…)’80

Regional human rights courts have also confirmed in their rulings the obligation of states to protect individuals from third-party intervention. For example, the European Court of Human Rights recognized in case Plattform ‘Ärzte für das Leben’ vs Austria the duty of states to protect peaceful demonstrators from violent counter-demonstrators.81 In addition, the Inter-American Court of Human Rights confirmed in the case of Vel‚squez Rodr†guez vs Honduras the content and scope of the obligation to protect. Furthermore, the Court implicitly recognized the duty of the state to prevent violations of American Convention on Human Rights by individuals. The Inter-American Court of Human Rights declared: ‘The second obligation of the state parties is to ‘ensure’ the free and full exercise of the rights recognized by the Convention by every person in its jurisdiction. This obligation implies the duty of state parties to set up the governmental apparatus and, in general, all structures through which public power is exercised in such a way that they are capable of judicially ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the states must prevent, investigate and prosecute any violation of the rights recognized by the Convention and if possible, attempt to restore rights that have been violated, and if warranted, provide compensation for damage resulting from such violations.’82

States must ensure that individuals can exercise their rights freely and without coercion. However, either actions or omissions of third parties or the occurrence of natural or man-made disasters can have an adverse effect on the exercise of human rights. In this context, it is important to determine the degree of accountability of the state in cases where non-state parties interfere with the realization of human rights. To answer this issue, three factors must be taken into account, viz. the legal nature of the right in question, the state’s awareness of interference by third parties in the exercise of the rights of individuals, and the measures adopted by the state to prevent such interference.83 With regard to the first factor, the degree of accountability of the state is linked to the legal asset protected by a specific human rights safeguard and to the extent 80 HRC, General Comment No 31 (80) Nature of the General Legal Obligation Imposed on State Parties to the Covenant (2004), Par. 8 81 ECtHR, Plattform ‘Ärzte für das Leben’ vs Austria App no 10126/82 (1998), Par. 32 82 IACtHR, Vel‚squez-Rodr†guez vs Honduras (1988) Serie C no 4, Par. 166 83 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 111; Nowak, Einführung in das internationale Menschenrechtssystem (2002) 66

Human Rights in International Law

43

of interference with the exercise of the rights by individuals. For example, due to its positive obligation, the degree of accountability of the state to protect is highly significant when serious human-rights violations are committed by third parties and when the state does not provide adequate means to prevent such violations. In fact, legal assets such as integrity of life and limb are jeopardized if states do not provide adequate legislation to ensure the exercise of the right of individuals to life and personal integrity and to protect them from murder, genocide or torture committed by third parties. In addition, states are accountable for violation of the right to human treatment when individuals or groups suffers, e. g., acts that would qualify as torture or cruel treatment by private security personnel.84 Consequently, the more readily the exercise of human rights is affected by third parties, the more states are held accountable for such violations.85 Regarding the second factor, degree of state’s awareness of the interference by third parties with the exercise of the rights of individuals, states are accountable for human-rights violations committed by third parties when they are aware of the interference by third parties or should have been aware with reasonable accuracy.86 In the case of Öneryldiz vs Turkey, for instance, the European Court of Human Rights established the violation of Art. 2 of the European Convention on Human Rights inter alia because the state officials and authorities had not done everything within their power to protect the inhabitants of the Ümraniye slums from the immediate and known risks to which they had been exposed.87 Relating to the third factors, states are compelled to adopt all legal and effective measures and actions to protect individuals from human rights violations committed by private parties. By adopting effective criminal legislation against genocide, torture, slavery, racial sedition, arbitrary imprisonment and enforced disappearance, states effectively accomplish their positive obligation to protect individuals from serious human-rights violations.88 In this connection, in the case of Öneryldiz vs Turkey, the European Court found that the preventive measures required to avoid a methane explosion in a waste disposal site definitely fell within the powers conferred on the authorities and could reasonably be regarded as a suitable means of averting the risks brought to their attention.89 With regard to the nature and the scope of the obligation to protect, this duty has both a preventive and remedial character. The former focuses on repealing an imminent violation of human rights resulted from an action or omission by 84 85 86 87 88

IACtHR, Pueblo Ind†gena Kichwa de Sarayaku vs Ecuador (2012) Serie C no 245, Par. 252 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 66 – 67 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 111 ECtHR, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 109 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 111; Nowak, Einführung in das internationale Menschenrechtssystem (2002) 66 – 67 89 ECtHR, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 107

44

Legal Foundations of the Link Between Human Rights and Conservation

third parties or by the negative consequences caused by natural or man-made disasters while the remedial character aims at repairing not only the consequences but also the causes of the damage. Its main purpose is that victims receive adequate compensation for the alleged damage whereas delinquents are penalized for their actions or omissions. Both prevention and remedial measures can be implemented either by legislation or by appropriate measures such as policies, program of actions.90 d.

Obligation to Respect Human Rights without Discrimination

States are obliged to respect, protect and meet human rights without discrimination. States are permitted to set limits on human rights within the law, refuse protection of individuals for admissible reasons set down in the law, or to reject specific benefits when this does not imply a breach of legal obligations; nevertheless, all these limits are feasible only within the scope of the prohibition of discrimination. In other words, although the limitations may conform with the law, they will not take effect if they infringe the prohibition of discrimination.91 According to Källin and Künzlin, the obligation to respect human rights without discrimination is an accessory to a prohibition of discrimination which constitutes an inseparable element of the primary obligation of the state for human rights. This obligation should be differentiated from the prohibition of discrimination as an independent human right.92 The legal foundation of the duty to respect human rights without discrimination is contained in Article 1 (3) of the United Nations Charter. According to it, the promotion and encouragement of respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion constitute a core objective of the United Nations.93 Important human rights instruments that also contain provisions in this respect are Article 2 (2) ICESCR, Article 2 (1) ICCPR, Article 14 (1) European Convention on Human Rights, Article 1 (1) American Convention on Human Rights, Article 2 African Convention on Human and Peoples Rights, Article 3 (1) Arab Charter on Human Rights.94

90 91 92 93 94

Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 112, 124 – 125 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 128 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 128 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 128 – 129 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 128 – 129

Human Rights in International Law

6.

45

Legal Framework for Human Rights

Once the goal, definition, nature and scope of human rights are clarified, it is necessary to identify the legal framework which will be the basis of the development of this study. According to Article 38 (1) of the Statute of the International Court of Justice, the main sources for binding international law are international conventions, international customs and general principles of law while judicial rulings and comments by the most highly qualified publicists constitute subsidiary sources to determine the rule of law. In the area of human rights, international and regional human rights agreements are the most important source of law. Nevertheless, they are binding on state parties only when such agreements have been ratified and entered into force.95 With regard to the interpretation of human rights instruments, this follows the general rules for the interpretation of international law embodied in Article 31 of the Vienna Convention on the Law of Treaties. Accordingly, the interpretation of the treaty must not only be based on agreements and instruments related to the treaty96 but also on the system of which it is part97. Since the corpus iuris of international human rights involve numerous international instruments of varied content and effect, this particular guideline has contributed to the adaptation of human rights instruments to changing political economic and social conditions.98 Indeed, both the European Court of Human Rights and the Inter-American Court of Human rights have held that human right treaties are living instruments which must be interpreted in the light of present conditions.99 This ‘evolutionary interpretation’ approach is particularly relevant when establishing interactions between human rights and the environment since it allows combining several international and regional human rights instruments and decisions. Relevant instruments for the development of this work are the Charter of the United Nations. The Charter neither provides a specific content of human rights nor grants individuals any legal right from its ratification by members of the Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 43 Art. 31 (2) of the Vienna Convention on the Law of Treaties Art. 31 (3) of the Vienna Convention on the Law of Treaties International Court of Justice, ‘Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa., notwithstanding Security Council Resolution 276 (1970)’, Advisory Opinion, ICJ Reports 1971, Par. 53; Inter-American Court of Human Rights, ‘The Right to Information on Consular Assistance. In the framework of the Guarantees of the Due Process of Law’, Advisory Opinion OC-16/99 (1999), Par. 113 99 Inter-American Court of Human Rights, ‘Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights’, Advisory Opinion OC-10/89 (1989), Par. 43; ECtHR, Tyrer vs The United Kingdom App no 5856/72 (1978), Par. 31; ECtHR, Bankovic vs Belgium App no 52207/99 (2001), Par. 64 95 96 97 98

46

Legal Foundations of the Link Between Human Rights and Conservation

United Nations; nevertheless, it represents the foundation of the legal universality of human rights.100 Further human rights instruments are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR contains substantive, procedural and institutional rights. With regard to the environment, practical and enforceable environmental obligations can be derived from civil and political rights.101 In fact, procedural rights such as the right to information, to access to justice or to administrative remedies, have become new obligations of international environmental law as they are anchored in environmental law agreements such as the 1998 Aarhus Convention.102 Civil and political rights analyzed in this work are the right to life, the right to property and procedural rights.103 The ICESCR also encompasses substantive rights. These rights provide a satisfactory basis to ensure minimum environmental standards and conditions. International national and international courts have made use of this covenant to condemn violations associated with the environment such as a lack of water due to toxic pollution or the pollution of the atmosphere by heavy metals or radioactive substances.104 Within the framework of this study, the right of adequate living standards, the right to adequate housing, the right to health and the right to water are addressed. Regional human rights treaties such as the European Convention on Human Rights, American Convention on Human Rights and the African Charta of Human and People’s Rights also constitute legal foundations of this work. In the area of human rights, customary law has a subsidiary meaning, in particular, when a state has not adopted or are cancelled a human rights agreement containing specific human right guaranties.105 According Article 38 (1) (b) of the Statute of the International Court of Justice, international custom constitutes evidence of a general practice accepted as law. Two elements are derived from this definition. The first element relates to state or general practice when there is a constant repetition of similar international acts. The second element is the opinion iuris which is the assumption that state practice is legally 100 ICJ, Case concerning United States Diplomatic and Consular Staff in Tehran (United States of America vs Iran) ICJ Reports 1980, Par. 91; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 45 101 Sands, Principles of International Environmental Law (2003) 305 102 Sands, Principles of International Environmental Law (2003) 297 103 Violations of civil and political rights relating to environmental issues are, among others, the suppression of environmental discussion and debate, restriction on the right to association and assembly, the mistreatment of complainants, press censorship and restriction of the right of access to environmental information. See in Sands, Principles of International Environmental Law (2003) 292 104 Sands, Principles of International Environmental Law (2003) 297, 299 105 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 43

Human Rights in International Law

47

defined.106 In this context, international customary law answers the following questions: which obligations states are ineluctably bound to, and which limitations on human rights are inadmissible assuming that an obligation is absolutely applicable by virtue of international customary law.107 Relating to the second question, owing to international customary law, human rights guaranties have reached international recognition and validity. In fact, principles and rules concerning the basic rights of persons such as the protection from slavery and racial discrimination are at the root of the so-called obligations erga omnes which states have towards the international community.108 In its General Comment 24, the Human Rights Committee (HRC) determined those human rights guarantees which are part of international customary law. According to the Committee: ‘[…] a state may not reserve the right to engage in slavery, torture, subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny persons of marriageable age the right to marry, or to deny minorities the right to enjoy their own culture, profess their own religion or use their own language’109

Apart of human rights treaties and customary law, declarations and recommendations of international organizations also express consensus between states. Although these instruments are non-binding, they play a significant role in the area of human rights since they provide an authoritative guideline for national legislators as well as for international and regional courts by interpretation of law.110 Declarations and recommendations have a double function. On the one hand, they are the basis for the development of binding law. For instance, some U.N. General Assembly resolutions have been at the root of human rights instruments. The Declarations of the Right of the Child or the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Declaration on the Elimination of All Forms of Discrimination Against Women are illustrations of previous resolutions of the 106 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 77 107 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 77 108 ICJ, The Corfu Channel (United Kingdom vs Albania. ICJ Reports 1949, 22; ICJ, Barcelona Traction Light and Power Company Limited (Belgium vs Spain) ICJ Reports 1970, Pars. 33 – 34 109 HRC, General Comment No 24 (52), General comment on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under Article 41 of the Covenant (1994), Par. 8 110 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 43 – 44, 87

48

Legal Foundations of the Link Between Human Rights and Conservation

U.N. General Assembly which were transformed into international human rights treaties. Moreover, they can contribute to the implementation of guaranties anchored in international treaties.111 In the particular case of resolutions of the U.N. General Assembly and other international organizations, it is important to clarify that that the International Court of Justice (ICJ) ruled, in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs United States of America) that those instruments contribute to the constitution of legal opinion provided that they are adopted at unanimity or a representative majority of members and involve statements of lege lata. On this basis, resolutions adopted by the U.N. General Assembly, advisory opinions of regional human rights courts and general comments by committees on international covenants on civil, political, economic, social and cultural rights are also an integral part of this study. According to Article 38 (1) (c) of the Statute of the International Court of Justice, judicial decisions and writings of publicists constitute subsidiary means to determine the rule of law. In the particular case of judicial rulings, the rulings of regional human rights courts provide an authoritative interpretation of law. Therefore, the rulings of the European and Inter-American Human Rights Courts and of the African Commission of Human Rights represent additional legal foundations of this work since in their rulings, these human rights bodies have established the clear interaction between environmental quality and the realization of human rights, not only in cases related to the extraction of natural resources but also in other industrial activities.

II.

Environment and Conservation in International Environmental Law

1.

Environment in International Environmental Law

International environmental law encompasses all substantive, procedural and institutional rules of international law, whether public or private, aiming to prevent, avoid or mitigate the increasing magnitude, frequency or consequences of environmental disasters.112 International environmental law focuses on the protection and conservation of the environment, understood to be the whole natural basis of life which contributes to the social or economic development of 111 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 87 112 Birnie and others, International Law & Environment (2009) 2; Sand, Principles of International Environmental Law (2003) 15

Environment and Conservation in International Environmental Law

49

mankind.113 Even though the environment is the main concern of international environmental law, an internationally recognized definition of such term has unfortunately not yet been adopted so far.114 One of the major challenges for defining this term is the amplitude of the scope and the possible contents that it could encompass. According to Epiney and Scheyli, the subject of protection in international environmental law includes not only all the environmental media present in nature and all services provided to humans, but also the complex interdependencies between ecosystems. In addition, improvements to the present state of the environment, the prevention of pollution as well as the conservation of natural resources constitutes subject of protection of international environmental law.115 Accordingly, a definition of the environment can include among others an element of the biosphere – water, air and forest –, the habitat of a specific species or the interrelationship between any components present in nature.116 Therefore, a legal definition of the environment is required in order to clearly determine the scope of protection, the competences of international organizations, and the rules on the liability for damage to the environment.117 Scientific categorizations, describing environmental media or issues as well as political considerations, have a significant impact on the definition of environment in international environmental law treaties.118 Taking into account these perspectives, different international forums have strived to develop a definition of ‘environment’. One of the first attempts to define this term was embodied in the Declaration of the 1972 Stockholm United Nations Conference on the Human Environment. This declaration inserts the expression ‘man’s environment’ and defines it as both natural and man-made aspects of the environment which constitute key elements for the achievement of man’s wellbeing and the enjoyment of basic human rights.119 Additionally, the European Commission developed its own definition in its ‘Action Program on the Environment’. This Commission qualified environment as ‘the combination of elements whose complex interrelationships make up the settings, surroundings and conditions of life of the individual and society as they are felt.’120 Another environment concept was set up within the United Nations Conference on EnEpiney and Scheyli, Umweltvölkerrecht (2000) 20 Epiney and Scheyli, Umweltvölkerrecht (2000) 19 Epiney and Scheyli, Umweltvölkerrecht (2000) 20 Birnie and others, International law & Environment (2009) 5 Sand, Principles of International Environmental Law (2003) 15 – 16 Sand, Principles of International Environmental Law (2003) 16 Declaration of the Stockholm United Nations Conference on the Human Environment (1972), Par. 1 120 European Commission, Council Regulation [EEC] No 1872/84 on Action by the Community Relating to the Environment, OJL 176 [1984]

113 114 115 116 117 118 119

50

Legal Foundations of the Link Between Human Rights and Conservation

vironment and Development held in Rio de Janeiro in 1992. Although the concept does not refer to the elements making up the environment, it highlights the important role of the environment to human life. Principle 1 of the 1992 Rio Declaration on Environment and Development postulates the environment as a crucial element which contributes to a healthy and productive life of human beings. All these concepts reflect a common perspective. They emphasize on the one hand the strong interrelationship between nature as provider of environmental services and goods, and human beings as its beneficiaries, as well as the unavoidable dependence of human beings and their social and economic development on the environment on the other. In addition to these definitions, there are international environmental law treaties which have their own definition of the environment in accordance with the specific environmental issues addressed by them. These environmental law instruments focus their attention on the effects on the environment caused either by a specific natural phenomenon or by human activities. The agreements refer to such effects as ‘environmental effects’, ‘environmental impact’ or ‘environmental harm’. Accordingly, in those treaties the term environment refers to a specific environmental component affected, be it biotic, abiotic, social or cultural, as well as to their interaction.121 The 1992 United Nations Framework Convention on Climate Change (UNFCCC) defines environment, e. g., as the ‘physical environment or biota’ on the basis of the adverse effects of climate change on ‘[…] the composition, resilience or productivity of natural and managed ecosystems […]’.122 In the light of this example, the meaning and usage of the term environment in the treaty provisions will depend either on the purposes of the instrument or on the object of concern protected by the treaty which, in turn, is linked to a specific environmental medium or a group of media (e. g. water, land, air) or to an environment-related concern (e. g. environmental pollution, environmental management).123 Contrary to these broad definitions of environment, early international agreements do not refer to the term ‘environment’; rather they enumerate some of the elements that make it up and which fall within the scope of their provisions. For instance, Article XX (b. and (g) of the General Agreement on Tariffs and Trade (GATT) relates to different elements within the environment such as animal and plant life as well as exhaustible natural resources. In the view of Sands, the exhaustive and restrictive enumeration in GATT aims to restrict the scope of its application since these terms establish a limitation to ‘the scope of permissible exceptions to the rules of free trade, particularly in the context of the 121 Birnie and others, International law & Environment (2009) 6 122 United Nations Framework Convention on Climate Change, (1992), art 1 (1) 123 Sand, Principles of International Environmental Law (2003) 16

Environment and Conservation in International Environmental Law

51

narrow scope of the terms used by the GATT Dispute Settlement Panels’.124 Similarly, the 1982 World Charter for Nature does not delineate the term environment but rather the components of nature protected under the umbrella of the general conservation principles laid down in this Charter. In accordance with the World Charter for Nature, these elements of the environment are all life forms and their habitats; all areas of the planet, both land and sea; ecosystems and organisms; as well as land, marine and atmospheric resources.125 Although there is no integrative definition of the environment in international law, a set of elements can be deduced from the above definitions. There are four elements which are the environment, ecosystem services, human well-being and support mechanisms for a functioning environment.126 Each of them and their interaction has a decisive role in the dynamic interrelationship between man and the environment since they provide goods and services to the environment itself and contribute to the development of human well-being.127 On this basis, the element ‘environment’ can be conceptualized as a sum of environmental media – air, water and land – and biological diversity – genes, species and ecosystems – all of which support the ‘complex web of interactions and responses’ in nature.128 Once the concept of environment was clearly defined, it is important to understand the complex relationship between the factors that impact on environmental quality before explaining the consequences that the extraction of natural resources has on man and the environment.

2.

Cause-and-Effect Relationship Between Human Activities and the Environment

The DSPIR (Driving forces, Pressures, States and Responses) framework was designed to determine and organize the cause-and-effect relationship between human activities and their effect on the environment with the aim to design and implement mechanisms that prevent, avoid or reduce those effects (Figure 1.4).129 In order to clarify the scope of the impact human activities have on the environment, the framework firstly identifies the so-called ‘drivers’, which are anthropocentric forces that put pressure on the environment. In a second and third stage, the framework determines the pressures derived from these drivers and to what extent they influence and change the ecosystem and its functions. 124 125 126 127 128 129

Sand, Principles of International Environmental Law (2003) 16 World Charter for Nature, (1982), Pars. 2, 3 and 4 McNeely and Mainka, Conservation for a New Era (2009) 17 Gilpin, Environmental Impact Assessments (2000) 1 McNeely and Mainka, Conservation for a New Era (2009) 17 EEA, Sustainable use and management of natural resources (2005) 10

52

Legal Foundations of the Link Between Human Rights and Conservation

After determining the scope of the pressures, positive and negative effects of human activities on the environment can be established. Finally, the framework proposes the design and implementation of actions to improve the state of the environment.

Figure B.1: DPSIR Framework Source: EEA, Sustainable use and management of natural resources, (2005) 10.

a.

Global Driving Forces Affecting the Consumption of Natural Resources

This framework has identified three global driving forces, viz. population growth, economic growth and pattern development (Figure 1.5). These forces are factors that ‘determine the growth of resource consumption and the resulting environmental impact of human production and consumption patterns’.130 With regard to population growth, a population increase of about 50 percent has been projected for the next fifty years. This means that the requirements of goods and services are also expected to grow almost at the same rate to satisfy the needs and consumption patterns of the population. On the basis of these projections, a direct proportional relationship between demographic developments and environmental impacts can be derived, viz. the more population grows, the more natural resources are needed for the production of goods and services to satisfy the growing demand of the population. In other words, the increasing extraction of natural resources gives rise to greater pressure on resource availability and quality, and on the regenerating capacity of ecosystems. However, it is important to note that this relationship varies from region to region. For instance, the population in developing countries is expected to double over the next 50 years, while the population growth in the developed countries tends to stagnate or even decline.131 Despite of these differences in demographic behaviour between developed and developing countries, population growth continues to be a driver of 130 EEA, Sustainable use and management of natural resources (2005) 11 131 EEA, Sustainable use and management of natural resources (2005) 11 – 12

Environment and Conservation in International Environmental Law

53

resource consumption and thus is an issue of increasing importance for both developing and developed countries since economic growth can only be ensured when states allow the economic players in their territories access to and the supply of natural resources.

Figure B.2: Global Driving Forces Influencing the Consumption of Natural Resources

Economic growth constitutes another driver that influences global resource consumption. It reflects the value of goods and services generated by an economy during a specific period of time and it is expressed by the per capita gross domestic product (GDP). Global economic growth in the past 30 years has increased about 3 per cent per annum. Nevertheless, this increment has not benefitted developed and developing countries in equal measure. For instance, at the beginning of this century, the per capita GPD in OECD countries was USD 25,000 while in developing countries it was USD 4, 000.132 Economic growth can be achieved through the development of goods and services for consumption that require massive flows of materials. This in turn is only possible when economies have access to energy and natural resources.133 Since natural resources are distributed unevenly, countries are dependent on the extraction of their own resources or the exchange of raw materials and semi-products in order to secure their supplies. Consequently, world trade implies additional pressure on the environment in countries rich in energy resources.134 The demand for resources supports the industrial production process; therefore, the promotion of economic development has a serious impact on the environment in which these resources are extracted, transformed and shipped. The third global driving force is the so-called development pattern which includes both the type of technology needed to satisfy given needs and the 132 EEA, Sustainable use and management of natural resources (2005) 12 133 EEA, Sustainable use and management of natural resources (2005) 18 134 EEA, Sustainable use and management of natural resources (2005) 13

54

Legal Foundations of the Link Between Human Rights and Conservation

structure of the economy. Technology plays a decisive factor in the prevention and mitigation of environmental pressures. In the case of the extraction, use and disposal of natural resources, the extent of the environmental impacts depends on the efficiency of the technology applied to such activities. In fact, the development of new technologies for the alleviation of environmental pressures on resources and ecosystems makes a positive contribution to the achievement of this goal. However, it must be noted that new methods can also have negative consequences. For example, whereas the consumption of biofuel contributes to the reduction of GHG emissions in the atmosphere, the cultivation of crops for their production can impact negatively on the environment and people. Therefore, the development of technologies requires a profound analysis of the whole chain of production and consumption of natural resources so that other elements within the chain are not unduly affected.135 Economic structure includes two factors: production patterns and consumption patterns. With regard to production patterns, industrial production encompasses the extraction of natural resources on the one hand and the transformation of these resources into goods and services on the other. In this connection, there are economies in which industries specialize in resource extraction (resource-intensive industry) and economies that manufacture products and generate services (less resource-intensive industry). Both types of industries require natural resources; however, the difference between them lies in the efficiency with which resources are extracted and used. Developed countries, e. g. have focused their efforts over the past decades on uncoupling economic growth from material and energy consumption by switching from resourceintense industrial economies to knowledge economies, services and the efficient use of resources through clean-energy technologies.136 In this sense, the goal of post-industrial economies is to promote their economic growth through the generation of technologies that reduce their dependence on natural resources. Nevertheless, many developed countries, especially in the EU, have still not yet achieved the goal of reducing their resource consumption patterns in absolute terms. Instead, Europe has decreased the domestic extraction of resources and increased imports. The consequence is a relocation of extraction sites and the resulting environmental impact of this activity abroad. By contrast, economies of developing countries are mainly based on the extraction and the import of natural resources. Furthermore, emerging countries have been experiencing ‘early’ industrialization. This means that these countries are going through a process of industrialization that demands huge amounts of natural resources for

135 EEA, Sustainable use and management of natural resources (2005) 13 136 EEA, Sustainable use and management of natural resources (2005) 5

Environment and Conservation in International Environmental Law

55

the consolidation of their economic growth.137 Taking into account that most of these countries do not promote clear environmental and social standards and lack modern industrial technology, the extraction of natural resources for selfsupply and exportation puts additional pressure on the environment.138 By comparing the global resource consumption patterns between developed and developing countries, industrialized countries consume more resources than developing ones despite of the decline in their populations and their attempts to uncouple economic growth and to use natural resources more efficiently by developing clean-energy technology. The disproportional distribution of the energy consumption is illustrated by the energy use in OECD countries. In 2000, the population of OECD countries amounted to 19 percent of the world population yet they consumed 53 percent of the global energy supply. Consequently, the remaining 81 percent of the world’s population consumed only 47 percent of the world energy.139 These consumption patterns can vary in the next few years since early industrialization and the population growth in developing countries – 85 percent of the world’s population in the next 50 years – will lead to an explosion in resource consumption.140 In fact, considering that total material consumption in the developed countries currently varies from 31 and 74 tons per capita and assuming that the world population will increase to about 9 billion in the next 50 years, worldwide consumption of resources will consequently fluctuate between 276 and 666 billion tons.141 These projected trends in the consumption patterns of the world’s population could lead to a global resource crisis characterized by a competition for access to resources.

b.

Pressures on the Environment

According to the European Energy Agency, pressures are the physical expressions of global drivers and reflect the interaction and interdependence between human activities and the environment. Within the production cycle of an economy, pressures can occur either on the ‘input’ side (source) or on the ‘output’ side (sink) (Figure 1.6).142 The input side or sources is composed of the so-called providing and supporting service of ecosystems such as the capability of the environment to maintain the availability of supplies or to regenerate environmental media like soil or water. The extraction of natural resources for 137 138 139 140 141

EEA, Sustainable use and management of natural resources (2005) 10, 15 EEA, Sustainable use and management of natural resources (2005) 21 – 23 EEA, Sustainable use and management of natural resources (2005) 17 EEA, Sustainable use and management of natural resources (2005) 15 – 16 Stefan Bringezu and others, ‘Rational for and Interpretation of Economy-Wide Material Flow Analysis and Derived Indicators’ (2003) vol 7 Journal of Industrial Ecology 43 – 64 142 EEA, Sustainable use and management of natural resources (2005) 5, 10

56

Legal Foundations of the Link Between Human Rights and Conservation

human activities constitutes a pressure on the sources.143 Forest clearing, fishing or the use of water for industrial activities reduce the availability of resources. In order to replenish reduced or exhausted resources, ecosystems need time for regeneration. However, overexploitation of resources puts additional pressure on ecosystems, thereby threatening not only its regenerative capacity but also the survival of the species. In fact, owing to their regenerative capabilities some living resources are able to recover quickly from overexploitation while the capacity of others to survive overexploitation is considerably reduced due to their slower regeneration process.144

Figure B.3: Pressures on the Environment

Output side or sinks are strongly linked to the regulating function of ecosystems, which is the capability of ecosystems to manage environmental impacts and to absorb discharges.145 In this connection, pressures on the sinks can be defined as discharges of pollutants into the environment and the disposal of waste generated by the extraction, transformation, transportation and consumption of products and services. Given the fact that ecosystems have a limited capacity to absorb discharges, pollutant and waste emissions, the growing consumption of resources unavoidably overtaxes the regulating function of an ecosystem so that serious impact on the environment and the human population are to be expected. For instance, the worldwide increase of material consumption gives rise to changes in the atmosphere and to growing volumes of municipal and industrial waste.146 For this reason, excessive pressure on sources and sinks may lead to an ecological imbalance.

143 144 145 146

EEA, Sustainable use and management of natural resources (2005) 5, 10 Birnie and others, International law & Environment (2009) 587 EEA, Sustainable use and management of natural resources (2005) 5 EEA, Sustainable use and management of natural resources (2005) 6, 10

Environment and Conservation in International Environmental Law

c.

57

States, Impacts and Responses

Three others important elements of the DPSIR framework are: states, impacts and responses. The EEA define a state as ‘the condition of the different environmental compartments and systems in physical (e. g. temperature), chemical (e. g. atmospheric CO2 concentrations) or biological (e. g. fish stocks) variables.’147 These properties of ecosystems which comprise bio-chemical material cycles can be modified by pressures based on human activities. In other words, the extraction of natural resources as well as the generation of pollutants and waste can give rise to changes of the ecosystem elements and systems. Such changes, in turn, impacts on the environment, economy and ecosystems. In this context, impacts can be defined as the consequences of the changes suffered by environment. The impacts are the physical form of the influences of pressures on the environment. For instance, the construction of large dams for the generation of energy modifies the river flow and the lifecycle of many aquatic species. The alteration of this biological variable gives rise to the loss of species of fish and the resulting destruction of human food and animal feed chains (Figure 1.7). However, the negative impacts of pressures can be mitigated by responses which are actions and measures taken by different stakeholders in order to prevent, mitigate or avoid the negative impacts caused by human activities on man and the environment.

Figure B.4: Example of DPSIR Framework for Energy Demand

The DPSIR framework allows analysing the connection between human activities and the environment so that the effects of this interrelation can be clearly understood. This framework is useful in this study since it helps identify the connections between drivers, pressures, states and impacts in the context of the energy extraction as well as to establish the changes that the extraction causes on the environment and on the rights of people affected.

147 EEA, Sustainable use and management of natural resources (2005) 10

58

Legal Foundations of the Link Between Human Rights and Conservation

3.

Conservation and International Environmental Law: a Way to Protect the Environment

When analyzing the interactions between human needs and the environment, it becomes clear that international environmental protection has been conceived mainly from an anthropocentric perspective.148 The Declaration of the 1972 Stockholm United Nations Conference states in its preamble that ‘man is both a creature and a moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth.’149 This anthropocentric approach to environment, which places human beings and their needs in a position of predominance, has been strengthened in time. In fact, international environmental law restricts the subject of protection to the artificial environment created by humans as well as the whole basis of life that contributes to human well-being and development.150 From this perspective, conservation has been defined as ‘the management of human use of the biosphere so that it may yield the greatest sustainable benefit to present generations while maintaining its potential to meet the needs and aspirations of future ones. […]’.151 Consequently, the chief aim of conservation is the achievement of human goals by ensuring access to and the use of the biosphere. Accordingly, conservation, viewed from an anthropocentric perspective, conceives the environment as an instrument that ensures human survival and satisfies needs. In fact, conservation strategies and standards and their objectives are developed and implemented according to a man-centred conception so that their objectives are to ensure the survival of humanity, living standards and access to and the continued use of resources. As a result, the state of the environment is solely determined by the needs of humanity.152 However, environment goes beyond this instrumental conception since nature possesses intrinsic values next to having its own interests.153 In fact, in its Preamble, the 1992 Convention on 148 Birnie and others, International law & Environment (2009) 7 149 The Declaration of the 1972 Stockholm United Nations Conference, Par. 1 (emphasis added) 150 Laura Horn, ‘Globalization, Sustainable Development and the Common Concern of Human Kind’ (2007) vol 7 Macquarie Law Journal 53 – 80, 72; Epiney and Scheyli, Umweltvölkerrecht (2000) 20 151 IUCN and others, World Conservation Strategy (1980) s 1, Par. 1 152 IUCN and others, World Conservation Strategy (1980) s 1, Par. 7; Klaus Bosselmann, ‘Human Rights and the Environment: Redefining Fundamental Principles?’ (2010) 13 – 14 accessed 23 June 2011 153 Klaus Bosselmann, When Two Worlds Collide: Society and Ecology (1995) 160; Klaus Bosselmann, ‘Human Rights and the Environment: Redefining Fundamental Principles?’ (2010) 2 accessed 23 June 2011

Environment and Conservation in International Environmental Law

59

Biological Diversity makes a clear distinction between intrinsic and instrumental value of nature by pointing out the ‘intrinsic values of biological diversity’ on the one hand and ‘the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components’ on the other. The recognition of the intrinsic value of nature opens the door to a new perspective, i. e. to an ecocentric approach which takes into consideration the interest and needs of environment independently from the human ones. The ecocentric approach aims at the protection of the biosphere by recognizing the intrinsic values of environment and its elements. This approach suggests that the environment has its own interests which are separate from and have the same importance as human ones.154 The intrinsic values of environment have been recognized and are anchored in the UN World Charter for Nature as pointed out in its Preamble which states that ‘every form of life is unique, warranting respect regardless of its value to man, and to grant other organisms such recognition, man must be guided by a moral code of action (…)’. However, the interpretation and application of this approach in a restrictive sense has led to a potential collision with human rights and needs. For example, some conservation strategies based on this perspective such the designation of protected areas have caused the exclusion of residents living in and depending on the resources in such areas.155 This, in turn, has entailed the rejection of local communities. The Yellowstone model of national parks is an example of this problem since it proposed the displacement of local communities in order to keep the environment intact; consequently, indigenous people and local communities in other regions like in West Asia have shown their opposition to such conservation practices.156 Due to this problematic nature, the international community has developed an approach that combines both anthropocentric as well as the ecocentric approaches to take into account both human and environmental needs and interests. ‘People in environment’ rather than ‘people and environment’157 is a conservation concept which reflects the strong interdependence between all elements of environment and human-beings as part of it (Figure 1.8). This perspective has been reflected in the Preamble of the Draft International Covenant on Environment and Development which defines biosphere as a unity and 154 Klaus Bosselmann, ‘Human Rights and the Environment: Redefining Fundamental Principles?’ (2010) 15 accessed 23 June 2011 155 Shelton, ‘A Right-based Approach to Conservation’ in Greiber (ed), Conservation with Justice: A Right-based Approach (2009) 5 156 McNeely and Mainka, Conservation for a New Era (2009) 36 157 McNeely and Mainka, Conservation for a New Era (2009) 36

60

Legal Foundations of the Link Between Human Rights and Conservation

stresses the strong interdependence of all its components.158 On this basis, the holistic approach to conservation integrates nature’s self-interests as well as the interest of present and future generations by combining intrinsic values (ecocentric approach) and instrumental values (anthropocentric approach) thereby achieving a balance between ecological concerns and human needs.159 Therefore, from this perspective, conservation could be defined as a cross-sector process that enables the interaction between sectors directly responsible of the management of living and non-living resources and those sectors dependent on the maintenance of such resources and habitats.160 This process aims at outlining and developing strategies that enables economic and social development goals through the sustainable use of living and non-living resources and the maintenance of ecological process.161 According to a holistic perspective, conservation leads to a broader interpretation of the interrelationship between environment and human well-being while at the same time encouraging conservation practices that do not affect but contribute to the fulfilment of human rights and ensure human well-being.

Figure B.5: Holistic Approachto Conservation

In conclusion, conservation has been understood from different perspectives which were incorporated into instruments of international environmental law. An anthropocentric approach views the environment as a supplier of resources to satisfy human needs and development. By contrast, environment has, ac158 Commission on Environmental Law of IUCN, ‘Draft International Covenant on Environment and Development’ (Environmental Policy and Law Paper No.31 Rev.2) Preamble 159 Klaus Bosselmann, ‘Human Rights and the Environment: Redefining Fundamental Principles?’ (2010) 26 accessed 23 June 2011; Laura Horn, ‘Globalization, Sustainable Development and the Common Concern of Human Kind’ (2007) vol 7 Macquarie Law Journal 72 160 IUCN and others, World Conservation Strategy (1980) s 1, Par. 6 161 Birnie and others, International law & Environment (2009) 590

Environment and Conservation in International Environmental Law

61

cording to the ecocentric approach, its own character and interests so that its conservation should be ensured irrespective of human needs. Finally, a holistic approach links both the interests of the environment and those of human beings. This perspective constitutes a key basis for analyzing the connection between human rights and conservation since it establishes the dependency between environment and human development; consequently, this approach will guide the subsequent elaboration of this work.

4.

Principles and Rules of International Environmental Law

International environmental law lumps together several international standards whose goal is the protection of the environment. However, this group of standards does not build a consistent and ordered normative system since this area of law is based on some principles of international customary law as well as of multi- and bilateral international agreements which regulate specific environmental issues and media. This has had repercussions on the enforceability of international environmental law due to the absence of an international judicial authority and conflicting interpretation by states.162 As a result, international environmental law has been considered an inconsistent and fragmented body of law.163 Nevertheless, since the Rio Conference of 1992, a new tendency has influenced the development of international environmental law. On the one and, environmental principles and rules are being increasingly integrated into the preamble of treaties and into operative instruments for their implementation. On the other hand, international bodies, in particular regional courts of human rights, have supported their judgements on the basis of principles and rules of environmental law.164 Consequently, a certain harmonization and consistency of international environmental law has been achieved and strengthened. Before analyzing the implications and contributions of principles of environmental law on human-rights issues and the exploitation of natural resources in the energy sector, it is necessary to understand the scope and legal status of principles and rules of international environmental law. In international law, the legal character of principles depends not only on their recognition at international level but also on the support and consistent legal practice by the states. While a few principles are part of the international customary law and provide sufficient foundation for their enforcement such as the principle of permanent 162 Epiney and Scheyli, Umweltvölkerrecht (2000) 30 – 31; Sand, Principles of International Environmental Law (2003) 231 163 Epiney and Scheyli, Umweltvölkerrecht (2000) 30 164 Epiney and Scheyli, Umweltvölkerrecht (2000) 30 – 31 Principles of International Environmental Law (2003) 284

62

Legal Foundations of the Link Between Human Rights and Conservation

sovereignty over natural resources and the precautionary principle, others may be considered a part of ‘soft law’ since their status is still unclear. Although these last ones are contained in international instruments or in some cases even constitute customary obligations, they do not open the door to an actionable obligation.165 The difficulty of determining the legal status of environmental law principles generates two additional problems brought on by the binding character and the application scope of such obligations. The binding character and scope of application of general principles and rules play a significant role at the time of their implementation and enforcement at national and international levels. However, both binding character and scope of application depend in turn very much on the degree to which these obligations and state practices are recognized. Standards of international law achieve a binding character either when they enter into force through international agreements or when they are recognized as international customary law. In this regard, it is questionable if principles of environmental law are part of customary law and thus have a binding character in cases where it is difficult to prove continuous practice by the states. In response to this question, environmental principles and rules are increasingly being integrated within several international instruments and have been taken as a basis for rulings of international courts and tribunals. These have clearly shown evidence of wider state practices which strengthens the binding character of the environmental principles and rules.166 In order to identify if general principles and rules have a binding character in international environmental law, the following criteria have been developed: the assessment of state practices, their adoption and implementation in international treaties as well as in national legislation, and their enforcement through international court and tribunals. In addition, the content of the principles of international environmental depends on the normative quality of such obligations. According to Epiney and Scheyli, principles in international law possess a normative quality when they encompass a minimal material content as well as a binding force. In that sense, two fundamental preconditions contribute to the application and enforcement of principles and rules in international environmental law, in that the constituent elements of the obligation (e. g. their objectives and the scope of application) and their validity rest on international recognition and state practice.167 International environmental law involved ‘principles’ and ‘rules’. These terms are often used synonymously in international environmental law since both sets 165 Epiney and Scheyli, Umweltvölkerrecht (2000) 75; Sand, Principles of International Environmental Law (2003) 231 – 232 166 Epiney and Scheyli, Umweltvölkerrecht (2000) 75; Sand, Principles of International Environmental Law (2003) 284; Patterson (ed), Philosophy of law and legal theory (2003) 55 167 Epiney and Scheyli, Umweltvölkerrecht (2000) 76

Environment and Conservation in International Environmental Law

63

of standards point towards particular decisions about legal obligations in specific cases.168 Nevertheless, they differ in application scope and significance. One the one side, the legal effect of principles or rules depends on the applicability in a given case. On the other side, their development and implementation vary considerably depending on the legal character of the norm. Thus, it is important to define principles and norms separately. Principles enclose general standards which contain fundamental values that support the structure and development of a society. Therefore, they should be taken into account by states at any time or under any circumstances.169 Although these axioms do not rule out a specific action, they constitute the bases for outlining and implementing positive norms.170 In this regard, principles of international environmental law have three functions. First, principles rule the conduct of subjects of international law. One common feature of environmental law principles and rules is their potential application to all members of the international community as well as to the accompanying activities related to environmental issues.171 Second, they constitute guidelines for the interpretation and application of environmental provisions as well as for the further development of international law. Third, they build the bases for the ongoing development of international environmental law.172 With regard to their enforcement, principles are catalogued as ‘equally obligatory upon every tribunal seeking to administrate justice.’173 Consequently, national and international courts are called on to implement universally recognized principles even though they are not reflected in a code of positive rules.174 However, an effective implementation of principles necessarily requires that the obligation contained in a universal principle be anchored in a positive standard. In the case of Wallon Waste, the European Court of Justice (ECJ) established that each region, municipality or other local authority is responsible for taking appropriate steps to ensure compliance with principles.175 In fact, one possible ‘appropriate step’ is to develop legislation through the enactment of positive standards. Rules of law involve an ensemble of positive norms which enables the

168 Patterson (ed), Philosophy of law and legal theory (2003) 52 169 Dworkin, Talking Rights Seriously (1978) 26 170 United Nations, Gentini case (Italy vs Venezuela. Reports of International Arbitral Awards vol X (1903), 560; Sand, Principles of International Environmental Law (2003), 233 171 Epiney and Scheyli, Umweltvölkerrecht (2000) 75; Sand, Principles of International Environmental Law (2003) 231 172 Epiney and Scheyli, Umweltvölkerrecht (2000) 75 173 United Nations, Gentini case (Italy vs Venezuela. Reports of International Arbitral Awards vol X (1903), 560 174 Sand, Principles of International Environmental Law (2003) 234 175 ECJ, EC Commission vs Belgium (Walloon Waste Case) (1992) Case C-2/90, Par. 34 – 35

64

Legal Foundations of the Link Between Human Rights and Conservation

implementation of obligations contained in such principles.176 In other words, rules instrumentalize principles. This draws a significant line between rules and principles at the time of their application. Unlike principles whose legal force does not depend on their application in a particular case, a rule needs to be applied in order to achieve its legal effect. In this connection, Dworkin highlights that ‘if the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the ruling.’177 Consequently rules, understood as ‘practical formulation of principles’178 enables the development and effective implementation of international environmental law. With regard to the content of rules in international environmental law, they are of a substantive, procedural or institutional character. The aim of those rules is the protection of the environment through their implementation at national or international level.179 Substantive rules contain environmental standards (e. g. air and water quality, conservation of biodiversity) while technical rules or procedural obligations establish how these standards are to be implemented. In international environmental law, there are material rules such as the obligation to inform, warn and consult, whose effective implementation merely requires international cooperation or the adoption of measures by the states under domestic law, in contrast to other substantive rules which depend on procedurals rules for their legal effect. For example, the precautionary principle needs to be backed up by environmental impact assessments which in turn represent a procedural obligation before starting an activity likely to pose an environmental risk.180 Examples of procedural obligations in environmental law that support the implementation and enforcement of general principles of international environmental law are, e. g. environmental impact assessments, access to information, public participation and access to courts in environmental matters.181 In order to ensure the correct applicability of principles and rules to a particular activity and its consequences on the environment, the doctrine developed some criteria to be taken into account, viz. the source of the principle or rule, its content, legal effect, the particular activity and its possible consequences on the environment, and the circumstances in which these events occur.182 In case of a conflict between principles and rules in international environmental law, certain factors have to be considered. On the one hand, when principles collide, the 176 177 178 179 180 181 182

Sand, Principles of International Environmental Law (2003) 15 Dworkin, Taking Rights Seriously (1978) 24 Sand, Principles of International Environmental Law (2003) 233 Sand, Principles of International Environmental Law (2003) 15 Epiney and Scheyli, Umweltvölkerrecht (2000) 119 Sand, Principles of International Environmental Law (2003) 232 Sand, Principles of International Environmental Law (2003) 231

Environment and Conservation in International Environmental Law

65

relative weight of each has to be taken into account since principles have the same significance among them. On the other hand, in case of a conflict between the applicability of a principle and a rule, principles play a more important role than a rule owing to their legal force. Finally, conflicting rules can or cannot be important depending on their role in regulating a particular conduct.183 Once the relationship between principles and rules in international environmental law is analysed, it is possible to establish an environmental legal framework to guide the development of this work.

5.

Environmental Legal Framework

With the aim to respond to the rising importance of environmental problems and the need to protect the environment, international environmental law has compiled both public and private international law into one body.184 Traditional sources of this body of law are the same as laid down in Article 38 (1) of the Statute of the International Court of Justice. On the one hand, treaties represent the most frequently used instruments for generating generally applicable multilateral rules on environmental matters.185 Due to the difficulty of achieving consensus at international level, especially in relation to environmental topics, many environmental law treaties only encompass general principles or requirements for states to ‘take measures’ and do not impose concrete obligations on them.186 On the other hand, general principles of law have contributed to the development of international environmental law. The so-called declarations of principles and rulings of the International Court of Justice have given rise to general principles of international environmental law.187 General principles are important as they influence the interpretation, application and development of treaties and of customary law. Moreover, they provide parameters for the decisions of the courts as well as determining limits and guidelines to resolve conflicts between competing rules or principles.188 General principles of envi183 184 185 186

Dworkin, Talking Rights Seriously (1978) 54 – 55 Birnie and others, International law & Environment (2009) 2 Birnie and others, International law & Environment (2009) 15 Epiney and Scheyli, Umweltvölkerrecht (2000) 36; Birnie and others, International law & Environment (2009) 15, 17 187 Illustrations of such declarations of principles are the 1972 Declaration of the Stockholm United Nations Conference on the Human Environment and the 1992 Rio Declaration. Furthermore, the ICJ developed in the Trail Smelter case the responsibility of states not to cause cross-border environmental damages. See United Nations, Trail smelter case (United States vs Canada. in Reports of International Arbitral Awards Volume III (1941) 1905 – 1982, 1965 188 Birnie and others, International Law & Environment (2009) 28

66

Legal Foundations of the Link Between Human Rights and Conservation

ronmental law which constitute the basis of this investigation are:189 states’ sovereignty over their natural resources, the responsibility not to cause crossborder environmental damage, the principle of cooperation, the principle of sustainable development, the precautionary principle and the ‘polluter pays’ principle. Apart from binding sources of international law, soft law plays a significant role in the development of international environmental law.190 From a legislative perspective, soft law is ‘a simple convenient description for a variety of non-binding instruments used in contemporary international relations.’ This term can also refer to ‘non-treaty agreements between states and other entities that lack the capacity to conclude treaties.’ In this context, environmental soft-law encompasses resolutions of international organizations, codes of practices, recommendations, guidelines, resolutions, declarations of principles.191 Such instruments are generally non-binding; however, they can achieve a binding character when adopted into a framework treaty. The advantage of soft law is that it provides states with a certain flexibility to determine the conditions and application scope of these instruments without compromising their freedom of action.192 Furthermore, important organizations that have contributed to this area through their reports and articles are the International Law Commission, the Institute of International Law, the International Law Association, the World Commission on Environment and Development and the International Union for the Conservation of Nature. Several of their reports are used as a basis for this work.

III.

Conclusion

The aim of this first Chapter was to establish the legal basis of the investigation. On the one hand, human rights are international rules which protect individuals from state and third-party interference with fundamental aspects of their life such as freedom, equity and dignity. Human rights instruments encompass provisions which not only protect individuals from state interference, but also provide individuals with adequate living conditions. Accordingly, the effective realization of civil and political rights and the concretization of economic, cultural and social rights depend on several factors, in particular on a clean and healthy environment. The effective exercise of the right to life e. g. is linked to access to clean water and sanitation, proper housing and adequate nutrition. The 189 190 191 192

Sand, Principles of International Environmental Law (2003) 231 Epiney and Scheyli, Umweltvölkerrecht (2000) 43 Birnie and others, International Law & Environment (2009) 34 – 35 Birnie and others, International Law & Environment (2009) 35 – 36

Conclusion

67

negative impact of the extraction of natural resources on the environment gives rise to violations of human rights. In this context, the existent legal and institutional structure of human rights constitutes a platform to prevent and reduce environmental damage and its consequences on the exercise of human rights. On the other hand, international environmental law addresses environmental issues as its main focus point. Although there is no unanimous international definition of what constitutes the environment, it is possible to infer from several concepts of this term that environment is the sum of environmental media and of biological diversity which support interactions and responses within nature. In addition to the environment, there are three further elements – ecosystem services, human well-being and support mechanism for a functioning environment – that constitute decisive links in the chain of the dynamic interaction between man and environment since they provide goods and services for both the environment itself and human development. Anthropocentric forces such as the extraction energy resources can have a negative impact on one or more of these elements and their interactions, thereby affecting the interrelationship between man and environment. In this context, this investigation adopts a holistic approach to conservation which connects both the interest of the environment and those of man in the extraction of energy resources on the basis of a well-defined framework of international environmental law.

C.

The Extraction of Natural Resources in the Energy Sector

The objective of this Chapter is to determinate to what extent the extraction of energy resources has a negative impact on the environment. This acknowledgement will serve as basis to establish the interdependence between the realization of human rights and the quality of the environment in the following Chapter. To achieve this objective, this Section will address as a first step the extraction of natural resources. The definition, classification and life cycle of these resources in the economy and its impact on the environment will be clarified. Additionally, this work will deal with the international legal framework under which the extraction of natural resources takes place. After laying the general basis for the extraction of natural resources, the investigation will deal in a second step with the extraction of energy resources. For this purpose, it will be necessary to first determine the importance of energy to economic and social development. Secondly, the processes of extraction both non-renewable and renewable energy resources and its consequences on the environment will be analysed. The results of this analysis are decisive for the investigation since it will establish the extent to which the realization of human rights can be affected by environmental impact from extraction activities. Finally, the ownership of energy resources and international environmental regulations on the extraction of resources will be elucidated.

I.

The Extraction of Natural Resources

1.

Natural Resources: Definition and Classification

The environment is a finite source of natural resource which supports life on earth. Humans and other species depend on the availability of natural resources and the ability of ecosystems to regenerate.193 In the particular case of natural 193 EEA, Sustainable use and management of natural resources (2005) 18

70

The Extraction of Natural Resources in the Energy Sector

resources, they can be defined as goods provided by the environment in different forms. The 1972 Stockholm Declaration is the first international environmental law instrument that established, on one hand, three main categories of natural resources, viz.: environmental media (water, soil and air), renewable resources (flora and fauna) and non-renewable resources (fossils). On the other hand, it recognizes the role of ecosystem services in the generation of renewable resources. In order to understand the nature of natural resources, their contribution to development and their impact of their extraction on the environment and the population, it is necessary to first analyse how they are categorized. According to the European Commission, natural resources can be classified into four groups: raw materials, environmental media, flow resources and space. (Figure 2.1)

Figure C.1: Classification of Natural Resources

Raw materials consist of minerals, including fossil energy carriers and metal ores, and biomass. In order to leverage the benefits of raw materials, they need to follow a life cycle similar to those of industrial products. Accordingly, raw materials need to be extracted, transformed into semi-finished goods or goods, transported, distributed and disposed of.194 Raw materials are sub-classified into non-renewable and renewable resources. Non-renewables are non-living resources which are part of the environment and contribute to support ecosystem functions.195 They cannot be replenished within a human timeframe since they have an extremely long regeneration cycle. An additional characteristic of these resources is that they are finite so that their availability depends on the rate of their consumption.196 Renewables resources are those generated by an ecosystem 194 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final 8; EEA, Sustainable use and management of natural resources (2005) 18 195 Birnie and others, International law & Environment (2009) 568 196 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural

The Extraction of Natural Resources

71

through so-called provisioning ecosystem services. They have both the potential and the ability to encourage compliance of supporting and regulating ecosystem services, such as carbon sequestration through forests or flood control by mangrove forests.197 Examples of these resources are food, fuels, genetic resources, biochemicals, homotherapeutic medicines and pharmaceuticals, ornamental resources and fresh water.198 A distinctive feature of these resources is their capacity to regenerate either in a relative short time or over a long period. Unfortunately, overexploitation can restrain or inhibit their regeneration capacity, causing the reduction or even extinction of certain species. Regarding the three further categories of natural resources, environmental media are those resources which are life sustaining as well as contributing to the production of biological resources. Examples of these media are air, water and soil. The importance of environmental media is based on their quality rather than their availability. E.g. anthropocentric impact, such as from pollution or chemical waste, changes the properties of these media and consequently affect their quality though not the quantity of existing air, water or soil.199 Regarding flow resources, these include wind, geothermal, tidal and solar energy. These resources are currently used for the generation of energy because of their environmentally friendly generation and use. These resources cannot be depleted and are required for their exploitation and transformation other natural resources. For instance, the building of wind turbines or of solar cells requires the use of energy resources and space. Finally, space as resource includes all physical areas required for producing and sustaining the abovementioned resources. For instance, space for agriculture needs large extensions of land for cultivation.200 On the basis of this categorization, this investigation will focus its attention on raw materials and on the environmental media necessary for energy generation.

197 198 199 200

resources’ (Communications) COM (2003) 572 final 8; EEA, Sustainable use and management of natural resources (2005) 18 – 13 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final 11 Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (2003) 56 – 57 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final 8 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final 8

72 2.

The Extraction of Natural Resources in the Energy Sector

Life Cycle of Natural Resources Within the Economy

Economic development requires natural resources for the generation of goods and services that satisfy basic needs and contribute to the welfare of human beings. As mentioned above, in the economic sector, natural resources follow a life cycle.201 The importance of analysing this life cycle is that it allows establishing the role of natural resources in the economy as well as the links between their extraction, use, disposal and the associated environmental impact. Moreover, the life cycle phases enable the identification, design and implementation of actions and measures to set up efficient and clean technologies, to modify consumption patterns to avoid the depletion of scarce resources, and to efficiently use resources to protect or alleviate the impact of their extraction and use on the environment.202 The following figure shows the different stages in the life cycle of natural resources in the economy (Figure 2.2).

Figure C.2: Lifecycle of Natural Resources within the Economy

In the first stage of this life cycle, natural resources are inputs which enter the economy in the form of production factors. During this stage, natural resources, i. e. raw materials, are extracted or environmental media exploited. Since natural resources are unevenly distributed throughout the world, some of them come from domestic extraction while others are imported. Regarding extraction activities, they have to a varying degree a negative impact on the environment and humans and livelihood, both at local and regional level.203 During the second stage, resources are transformed into goods and services either through rudi201 EEA, Sustainable use and management of natural resources (2005) 13, 18 202 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final 16 – 17 203 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final 17; EEA, Sustainable use and management of natural resources (2005) 18

The Extraction of Natural Resources

73

mentary production processes or advance technological methods. Similarly, this stage has an impact on the environment not only at local level, such as depletion, acid rain or air pollution, but also at global level, such as the accumulation of GHG emissions in the atmosphere. These effects compromise living organisms and reduce access to resources.204 Finally, in the third stage, some resources are returned to the environment either in form of CO2 emissions or waste while others are recycled either within the domestic economy or exported to countries in which these residues are disposed off or reused so that the life cycle of the resources can be prolonged.205 As can be seen, the whole life cycle of natural resources has impact on the environment which, in turn, has an accumulative effect on the availability and quality of the resources as well as on ecosystem services in general.206

3.

The Extraction of Natural Resources and Its Impact

The access to natural resources is fundamental for satisfying basic human needs as well as ensuring economic growth. Shortages or disruptions in the supply of natural resources have negative consequences on the global economy and can threaten world peace. In order to ensure the supply of resources to economic agents, States have to cope with external factors that affect the availability of and access to stocks in international markets. These factors are: the physical reserves of natural resources, mainly influenced by population growth and patterns of development; the political and economic stability of supplier countries; and the degree of dependence of importing countries.207 Regarding the dependence on imports, it is projected e. g. that in the next 20 or 30 years, 70 percent of EU energy requirements will be met by imports.208 With a view to reduce import reliance on energy resources, some European countries have focused their efforts on decoupling economic growth from material and energy consumption through the development of clean and energy-efficient technologies. Despite of these efforts, economic development will be inexorably linked to the extraction of natural resources in one way or another. The term exploitation or extraction of natural resources characterizes a 204 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final 17 205 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final 17 – 18; EEA, Sustainable use and management of natural resources (2005) 18 206 McNeely and Mainka, Conservation for a New Era (2009) 39 207 EEA, Sustainable use and management of natural resources (2005) 6 208 EEA, Sustainable use and management of natural resources (2005) 14

74

The Extraction of Natural Resources in the Energy Sector

process which allows obtaining materials or services from the environment. This process can vary depending on the nature of the resource extracted. For instance, soil exploitation implies managing soil productivity through the cultivation of crops. By contrast, the extraction of raw materials, such as fossil fuels, presupposes more complex processes such as exploration, drilling and transportation. Although the extraction of natural resources is essential for human life, no extraction activities and their processes can take place without environmental externalities.209 Two main impact factors are the scarcity of physical stocks and the degree of environmental quality (Figure 2.3). The scarcity of physical natural stocks is a result of the continuous decline in available resources due to overexploitation. In fact, population growth, economic growth and patterns of development are powerful factors that influence and modify the environment through the exploitation of natural resources. As a result, ecosystems lose their regenerating capacity so that non-renewable as well as renewable resources become scarce or may even disappear. This, in turn, endangers not only the economic and social development of present and future generations but could also lead to conflicts over access to resources. In this scenario, legislation plays a fundamental role since it can ensure the availability of resources by regulating the different consumption variables and patterns in their use.210

Figure C.3: Threats to the Environment Relating the Extraction of Natural Resources

The decline of quality of the environment represents an additional concern for the extraction of natural resources since the scope of its impact cuts across the transformation process of natural resources and affects other human activities at local, regional and even global level. An example of these cross-sector 209 IUCN and others, Caring for the Earth: A Strategy for Sustainable Living (1991) 92 210 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final 4, 10

The Extraction of Natural Resources

75

effects of the extraction of natural resources is the pollution of water, which does not only entail the destruction of biodiversity in the area where a project is implemented but also affects agricultural and farming activities at local and regional level. The primary causes for the decrease of the quality of the environment are the use of inefficient extraction technologies, the inefficient use of resources during production and the current lack of a mechanism to monitor and enforce the disposal of residues. In order to improve the quality of the environment, several responses have been developed. One of them is the sustainable management of natural resources and the impact caused by their extraction.211 Other important solutions proposed at international level which certainly have had an influence on the extraction of natural resources, are the efficient use and consumption of resources in the economy through the identification of alternative methods, permitting the efficient transformation of natural resources into goods and services. E.g. the efficient and environmentally friendly production of renewable energy based on the use of biocrops has been vaunted as an alternative to the extraction of non-renewable resources and as a decisive measure to improve environmental quality by reducing GHG emissions into the atmosphere.212 In conclusion, the extraction of natural resources is crucial for economic development; however, it has negative effects on the availability of natural resource stocks and the quality of the environment. To mitigate or avoid such effects, the international community has developed several responses to this problem. Examples of such measures are the sustainable management and development of natural resources, the application of new environmentally friendly technologies and, in particular, the regulation of resource extraction at national and international level.

4.

Natural Resources and Their Exploitation in International Law

The commercial extraction of natural resources has usually been subject to national legislation. However, in recent decades the role of natural resources has become increasingly important at international level. The reasons for this are on the one hand the contribution made by the exploitation of natural resources to economic and social development, and on the other hand the concerns related to the consequences of such activities on the environment and human rights.213 The 211 Johannesburg Declaration on Sustainable Development (2002), Par. 11 212 European Commission, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final 4, 10 213 Birnie and others, International law & Environment (2009) 586

76

The Extraction of Natural Resources in the Energy Sector

1972 Stockholm Declaration constitutes the first international instrument that introduced natural resources as a main concern of international environmental law. Henceforth, several international instruments have addressed this issue by developing principles and a mechanism for a sustainable exploitation of resources (Figure 2.4).

Figure C.4: Extraction of Natural Resources in International Environmental Law

Guiding principles for the exploitation of natural resources in the area of international environmental law are the principle of permanent sovereignty over natural resources, the responsibility of States to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states, the common but differentiated responsibilities, the precautionary principle, and the intergenerational equity principle. The principle of the permanent sovereignty over natural resource entitles postcolonial states to dispose of their natural resources with complete independence vis-—-vis the earlier colonial power. In the area of environmental law, this principle reaffirms not only the right of states to freely use their resources but also the State’s authority to emanate their own environmental policies. The 1972 Stockholm Declaration set however a limit to this right, viz. the responsibility of states to ensure that activities within their jurisdiction or control do not damage the environment of other states.214 Similarly, the 1992 Rio Declaration reaffirms, on the one hand, the sovereign right of states to exploit their resources. On the other hand, it calls on the international community to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or to areas beyond the limits of national jurisdiction. Moreover, it appeals to states to take into account the environmental vulner214 Declaration of the Stockholm United Nations Conference on the Human Environment (1972), principle 21

The Extraction of Natural Resources

77

ability of the least developed countries, on the basis of the principle of common yet differentiated responsibilities.215 An important maxim in international environmental law linked to the responsibility of states is the principle of common but differentiated responsibilities. This principle highlights the degree of involvement of both industrialized and developing countries in global environmental problems. In the particular case of the exploitation of natural resources, the principle attempts to strike a balance between states that benefit most from the exploitation of natural resources and those states whose populations do not have effective access to resources for their development. Apart from these principles, international environmental law has also addressed the impact of the extraction of natural resources. Regarding the impact of the extraction of natural resources, the preamble of the 1972 Stockholm Declaration recognizes that human activities can have a considerable impact on the environment and on peoples’ lives. The 1992 Rio Declaration endorses this acknowledgement and describes the most significant impact of human activities on nature, viz.: pollution of environmental media (water, air and soil) and depletion of natural resources.216 The World Charter of Nature, which is a Resolution adopted by the UN General Assembly and whose provisions influence international policies despite of its non-binding character, goes beyond the recognition of the influence of human beings on the environment by establishing a classification of the degree of the impact on nature; it also lists the various measures to be taken according to the degree of damage. The Charter classifies firstly those activities that will provoke irreversible damage and recommends avoiding their implementation when the occurrence of irreversible damage is imminent.217 Secondly, it lists activities that are likely to pose a significant risk. For these activities, the Charter presupposes an exhaustive examination to determine if the expected benefits outweigh the impact on nature or not.218 Finally, the Charter proposes the implementation of environmental impact studies before activities liable to disturb nature are commenced.219 In the case of the extraction of natural resources, this categorization of the risks given in the Charter is an important instrument for identifying the risks and for taking adequate measures affecting the environment and peoples’ lives before and during the performance of extraction projects. International instruments in the area of environmental law have also developed a mechanism to prevent, mitigate or avoid the impact from the exploitation 215 Rio Declaration on Environment and Development (1992), principles 2, 6 and 7 216 Declaration of the Stockholm United Nations Conference on the Human Environment (1972), Par. 3 217 World Charter for Nature (1982), art 11 (a. 218 World Charter for Nature (1982), art 11 (b. 219 World Charter for Nature (1982), art 11 (c.

78

The Extraction of Natural Resources in the Energy Sector

of natural resources on the environment. One of these mechanisms is the performance of environmental impact assessments. The aim of this study is to assert the magnitude of the impact that development projects can have on the environment before starting any extraction activities. The international legal basis of such studies is anchored in the UNEP Principles of Conduct, specifically in the area of the Environment for the Guidance of States, in the Conservation and Harmonious Utilization of Natural Resources shared by two or more states 1978, the World Charter of Nature220 and in the 1992 Rio Declaration.221 Another instrument aiming at protecting the environment from the impact of man-made activities is the sustainable management of natural resources. Natural resources should be extracted and used in the most efficient way possible. In the case of living resources, ecosystems and organism should be managed in such a way as ‘to achieve and maintain optimum sustainable productivity.’222 Furthermore, they should not be extracted beyond their natural regenerating capacity so that the integrity of other ecosystems or species is not be endangered.223 Similarly, environmental media and non-living resources should be exploited taking into account the needs of present and future generations for these resources. In this context, sustainable natural resource management is a mechanism to achieve an equilibrium between human and ecosystems needs. In addition to these instruments, the participation of the community subject to the decision-making processes is another mechanism that stimulates transparency and legitimates the implementation of extraction projects. This mechanism is endorsed in Article 23 of the World Charter of Nature and in Principle 10 of the Rio Declaration. Further mechanisms which play a crucial role in managing the impact of natural resource extraction are cooperation, technology transfer, the development of codes of conduct and standards, and the incorporation of international legal provisions into national law. The extraction of natural resources also brings benefits, of course; however, their transformation process may give rise to negative effects on the availability of stocks and on the quality of the environment. International environmental law has addressed these issues by setting up several guiding principles and mechanism. These instruments constitute important foundations of this investigation at the moment due to the role of international environmental law in human rights protection, in the context of the extraction energy resources, especially in relation to procedural rights in Section D.II.

220 221 222 223

World Charter for Nature (1982), art 11 (c. Rio Declaration on Environment and Development (1992), principles 7 World Charter for Nature (1982), art 4 World Charter for Nature (1982), art 10 (a. (b.

Energy in an International Context

II.

Energy in an International Context

1.

Energy and Development

79

Energy is a critical instrument for the fulfilment of basic human needs and the development of societies. To achieve human welfare and development, energy is transformed into energy services through a complex system made up of two main elements: the energy supply sector and end-use technologies. Regarding the first element, the energy supply sector involves a chain of complex processes. It begins with the extraction of primary energy resources (coal or oil) which are later transformed into energy carriers (electricity or gasoline). To cover the demand, energy is provided and delivered in form of energy services through the employment of end-use technologies. Finally, the system ends with the disposal of waste from extraction, transformation and energy utilization.224 (Figure 2.5) The second component of the system is the so-called end-use technologies. These are tools to enable the supply of energy services (lighting or heating).225 These technologies play an important role in the energy system since their adequate application may ensure three main goals of energy : accessibility (technologies that facilitate access to energy by the poorer strata of society, especially in developing countries), availability (technologies that ensures energy supply) and acceptability (technologies that are environment-friendly).226 On this basis, an efficient energy supply sector and the use of adequate technology to provide energy services are the key preconditions for the achievement of social, economic and environmental goals. From a social, economic and environmental perspective, the extraction, production, distribution and consumption of energy services play a significant role in the development of societies.227 Indeed, poverty alleviation, economic growth, demographic transition and urbanization depend on access to energy.228 Despite of the importance of energy for development, the negative consequences of energy generation and the increasing need for access to energy confront the interests of two groups. On the one hand, the rights and interest of people living in the area in which energy extraction and development takes place, are particularly vulnerable to the environmental impact from these activities. For instance, the large-scale generation of hydroelectricity requires the construction of dams and the flooding of vast tracks of land. People living in soon-to-be224 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 32 225 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 4, 31 – 32 226 World Energy Council, Energy End-Use Technologies for the 21st Century (2004) vii 227 WEHAB Working Group, A Framework for Action on Energy (2002) 3, 7 228 WEHAB Working Group, A Framework for Action on Energy (2002) 7

80

The Extraction of Natural Resources in the Energy Sector

Figure C.5: Energy System and the Impact on the Environment Source: IUCN and others, Caring for the Earth: A Strategy for Sustainable Living (1991) 91

flooded areas are displaced and lose their property rights over the land. Thus, the core interest of this group is to defend its rights and interest through the conservation of the environment. On the other hand, people living beyond the exploitation area depend on access to energy to satisfy their basic needs as well as to achieve economic development and welfare. This group is more interested in the economic value derived from energy than in the consequences of exploiting the energy resources at the source.229 This conflict of interest between these two groups has deepened as a result of the lack of access to electricity by about two billion people around the world and the environmental degradation resulting from the growing exploitation and consumption of energy resources. In the last thirty years, energy has become a matter of concern at international level. Global drivers, such as population growth, economic development and patterns of consumption and production, have pushed the global demand for energy to the point of jeopardizing the availability of and accessibility to energy resources as well as the quality of the environment. Indeed, unsustainable patterns of energy production and increasing consumption of energy services, rooted in inefficient energy systems, have given rise to the degradation of the environment and to the depletion of resources while stimulating the unequal distribution of energy, thereby accentuating the gap between rich and poor.230 On this basis, access to energy can only be ensured through the sustainable

229 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 32 230 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 3

Energy in an International Context

81

Figure C.6: Issues Surrounding Energy : Impacts and Responses

extraction of energy resources, a secure energy supply, the conservation of the environment and the realization of human rights.231 The goal of sustainable development is to meet the needs of the present generation without compromising the ability of future generation to meet their needs.232 In this connection, energy plays a decisive role in the achievement of economic and social development. The ‘World Energy Assessment: Energy and the Challenge of Sustainability’, prepared by the United Nations Development Program (UNDP), acknowledges the significance of energy for sustainable development, and identifies two important factors, which shape the relationship between energy systems and sustainable development. The first factor is linked to the significance of energy services for satisfying basic human needs, improving social welfare and achieving economic development. According to this factor, energy is a source of prosperity which presupposes not only access to energy sources but also the use of efficient technologies for the generation and provision of energy services. The second factor relates to the link between the environment and the quality of life of current and future generations. Accordingly, energy production and consumption should not compromise the availability of energy resource stocks or endanger the carrying capacity of ecosystems.233 On the basis of these factors, energy from the viewpoint of sustainable development has been conceptualized as energy produced and consumed ‘[…] in ways that promote – or at least are compatible with – long-term human wellbeing and ecological equilibrium.’234 This new approach stresses the strong 231 Edmonds and others, Global Energy Technologies Strategies: Addressing Climate Change (2007) 94 232 World Commission on Environment and Development, Our Common Future (1997) 8 233 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 12; Lyster and Bradbrook, Energy Law and the Environment (2006) 10 234 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability

82

The Extraction of Natural Resources in the Energy Sector

interdependence between energy, the environment and human beings. In order to achieve sustainability in the energy sector, three main paths within international forums have been proposed: efficiency in the use of energy ; increase of the dependence on renewable energy sources and the development of new end-usetechnologies.235 All of them have the aim not only to deal with sustainable development concerns but also to secure the supply of energy and to handle the negative effects on the environment. Sustainable development can only be guaranteed if energy supply is ensured. A possible disruption in the supply of energy sources, especially of fossil fuels, and the increasing degradation of the environment have become a growing concern to the international community. In its 2006 World Energy Outlook, the International Energy Agency pointed out that the world was facing a double whammy, that of energy-related threat of not having adequate and secure supplies of energy at affordable prices and that of the environmental damage caused by excessive consumption.236 These concerns are mainly rooted in the following factors: the availability of and access to fossil fuels as well as high rates of consumption. E.g. fossil energy represents more than 90 percent of the primary energy supply in the EU. The average of consumption of fossil fuels in the EU-15 is approximately 4 tonnes per capita per annum. About half of these fuels is imported.237 In the light of this example, the reasons for being concerned about the supply of fossil fuels in the future are many : their uneven distribution in the world, the growing consumption and dependence on oil imported from politically unstable countries, the possible disruption of energy supplies due to armed conflicts or terrorism, and of course their eventual exhaustion.238 All this has contributed to the increase in the price of fossil fuels over the last decade. In fact, the price per barrel has risen over 900 percent from about US$ 16 on January 1998 to $ 144 in mid-July 2008.239 It is projected that in the long term oil prices

235

236 237 238 239

(2000) 3 – 4; Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 47; Mak and Soltau, ‘Policy Options’ in Adrian J Bradbrook and others (eds), The Law of Energy for Sustainable Development (2005) 202 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 12 – 14; Commission of Sustainable Development, ‘Report on the Ninth session’ E/ CN.17/2001/19 (2001), ch I, art 4; Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 69; Lyster and Bradbrook, Energy Law and the Environment (2006) 10 International Energy Agency, World Energy Outlook 2006 (2006) 37 EEA, Sustainable use and management of natural resources,(2005) 6 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 11 Hodas David R, ‘International Law and Sustainable Energy : A Portrait of Failure’ (2010) 10 – 21 Widener Law School Legal Research Paper accessed 14 July 2011, 2

Energy in an International Context

83

will rise from $ 105 per barrel in 2013 to $ 163 per barrel in 2040.240 This fluctuation of prices threatens to slow down economic growth and to make access to energy services by large parts of the world’s population to satisfy their basic needs even more unaffordable. Consequently, the sustainable generation and use of fossil fuels depend not only on the measures aiming at the conservation of non-renewable resources and on ensuring the access to these resources by the users, but also on the sustainable management of such resources by taking their eventual exhaustion and the irrepressibility of consumption into due account.241 Environmental conservation is a further precondition for sustainable development.242 Therefore, another influencing factor that jeopardizes sustainable development and energy supply is the degradation of the environment. Energy generation and consumption has a negative impact on the environment, also called externalities243, at local, regional and global level. This impact can be classified into three categories: direct human impact (environmental impact on human beings), ecosystem impact (impact on the natural environment) and greenhouse emissions.244 The extraction of renewable as well as non-renewable energy sources give rise to soil, water and air pollution; loss of biodiversity ; shifting of land; and water scarcity. This, in turn, affects the regenerating capacity of the ecosystem and the conservation of other resources essential to the survival of humans and other species. For instance, the extraction of oil and gas in rainforest brings about the decline or loss of species and genetic resources due to the clearing of large parts of primary forest. Similarly, the consumption of energy, especially through the burning of fossil fuels, is responsible for two thirds of man-made GHG. These emissions have given rise in the last fifty years to an increase of CO2 concentration into the atmosphere and led to changes in temperature and precipitation and the vegetation cover across the world.245 As a result, people’s quality of life and development has been endangered because of

240 US Energy Information Administration, International Energy Outlook 2013 (2013) 2 241 EEA, Sustainable use and management of natural resources (2005) 35 242 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 126 243 ‘Externalities are the economist’s term for impact or costs, such as pollution-induced damages or illness, imposed on one group in society by another’s acts’ in Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 47 244 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 63 245 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 62; McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 37

84

The Extraction of Natural Resources in the Energy Sector

the resulting alterations in the land use, modification of the agricultural cycle, famine, and the faster spread of infectious diseases. In addition, energy enables the performance of several human activities ranging from meeting basic human needs, agriculture and industry to trade.246 However, the combination of the factors described above has serious consequences on the survival and development of human beings, especially in the realization of those human rights that depend on access to natural resources and the quality of the environment. Methods applied for the generation of energy, the quality and quantity of energy services, access to energy and the rates of energy consumption constitute factors that impact on social issues, such as poverty alleviation, population growth, economic growth, and the performance of human rights. If the rights of people in extraction areas are violated, the political stability of the country can be endangered and the supply of energy suffer disruptions, likely to result in higher prices on international markets and economic stagnation. On the other hand, if the population does not have access to adequate energy services, various human rights and development goals cannot be met. Consequently, social development depends on ensuring access to adequate energy services within an environmental conservation and human rights framework. Given the fact that energy is the motor of social and economic development and the basis for the fulfilment of human rights, the main concern of energy security is to guarantee the availability of energy ‘at all times in various forms, in sufficient quantities and at affordable prices’.247 This conception, firstly outlined at a time at which importing countries used oil as a device to exert political pressure, is facing new challenges today such as the scarcity of resources, environmental degradation and climate change. Therefore, from a sustainable development perspective, energy security now focuses on access of the world’s population to high-quality energy by adapting to the effects of global warming and by controlling environmental degradation.248 In view of this new concept, energy security needs to be strengthened at global and regional levels through international cooperation. In order to provide equitable access to energy, the international community should develop policies seeking to avoid reliance on fossil fuels imports by diversifying energy sources. Moreover, it should strengthen political stability and long-term agreements between importing and

246 WEHAB Working Group, A Framework for Action on Energy (2002) 9 – 10 247 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 11 248 Hodas David R, ‘International Law and Sustainable Energy : A Portrait of Failure’ (2010) 10 – 21 Widener Law School Legal Research Paper accessed 14 July 2011, 4

Energy in an International Context

85

exporting countries and promote technology transfer.249 All these steps will ensure the availability of and equitable access to energy resources, the conservation of the environment and the fulfilment of human rights in the future.

2.

Extraction of Energy Sources

The first stage in an energy system is the extraction of energy resources. This activity can exert significant pressure on these sources and on the environment depending on energy demand, mainly driven by population growth, economic development and patterns of consumption. The exploitation of energy resources has been defined as methods of turning energy sources into productive and profitable uses. These methods, however, differ greatly depending on the various types of resources.250 Natural resources used in the generation of energy range from raw materials (renewable and non-renewable resources and environmental media), flow resources (wind, sun, tidal waves, geothermic) to space. Since the focus of this work is on analysing the link between environment and human rights in the context of the extraction of energy resources and its consequences on the environment and population, it is important to understand the factors and methods bearing on the extraction process. Therefore, the analysis below will address the extraction processes of raw materials and the use of environmental media for the generation of non-renewable energy (fossil fuels) and renewable energy (hydroelectric power and biomass) as well as to the consequences of this activity on the environment and the population. a.

Non-renewable Energy Resources : Basic Components for the Generation of Fossil Fuels

According to the European Environmental Agency, fossil fuels are ‘one of the most important and strategic natural resources in modern society’ and constitute ‘the primary natural resource for satisfying the growing energy needs of industrialized countries.’251 Moreover, fossil fuels are now strategic instruments for ensuring economic growth in emerging countries since they support their industrialization process. In fact, the demand for fossil fuels has considerably increased in emerging countries because of the recent experimented industrialization.252 Fossil fuels provide about 77 percent of the worlds energy 249 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 11 250 Lyster and Bradbrook, Energy Law and the Environment (2006) 30 251 EEA, Sustainable use and management of natural resources (2005) 40 252 EEA, Sustainable use and management of natural resources (2005) 41

86

The Extraction of Natural Resources in the Energy Sector

supply and it is expected that this energy source supplies 80 percent of total world energy use up to 2040.253 In view of the above, economic and social development depends on the extraction of non-renewable energy sources on the one hand. On the other hand, these non-renewable resources are sinks and stores of carbon dioxide. The increasing consumption of fossil fuels has given rise to the release of carbon into the atmosphere causing changes in temperatures and precipitation. This, in turn, has affected mankind as well as the storage of water, biodiversity. An additional concern about fossil fuels is the limited supplies of these natural resources due to their long natural regeneration cycle. Projections suggest that the reserves of oil and natural gas will last up to 50 or 100 years depending on the extraction technologies and anticipated technical progress in upstream operations whereas the global stocks of coal are still plentiful.254 Therefore, the depletion of fossil fuels and the impact of their extraction and use raise new challenges for ensuring the supply of energy worldwide. Fossil fuels are mainly obtained from three non-renewable resources, viz. natural gas, carbon and oil. Regarding natural gas, they are used for the generation of electricity in power plants and for transportation. Natural gas consumption is expected to increase between 1.7 and 2.6 percent a year, mostly as a result of the growth in power generation in non-OECD countries.255 Although this natural resource is primarily composed of methane which is a potent greenhouse gas, it contains less carbon per BTU256 than coal and oil. As the cleanest burning of the three major fossil fuels, energy obtained from gas can be considered clean and is environmentally friendly. Therefore, its use is preferred by governments which are implementing policies to reduce GHG emissions. However, extraction, transportation and development of gas have several effects at local, regional and international levels. The leaking of methane and others poisonous gases adversely affects ecosystems and the health of population. In order to avoid or mitigate such externalities, the production of natural gas requires an expensive infrastructure and special treatment for its use in the transport sector.257 253 European Environmental Agency, EEA Signals 2004 (2004) 16; McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 35; U.S. Energy Information Administration, International Energy Outlook 2013 (2013) 1 254 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 12 255 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 116; U.S. Energy Information Administration, International Energy Outlook 2013 (2013) 1 256 BTU is the abbreviation for ‘British thermal unit’, a traditional unit of energy. 257 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 47 – 48

Energy in an International Context

87

Contrary to gas, coal is the cheapest energy source of the three fossil fuels. The reason is that coal is world’s most abundant fossil fuel and reserves are more evenly distributed across the world. It is forecast that reserves of coal will last for another 220 years. In developing countries, coal is used for heating and transportation. Although the generation of electricity from coal requires expensive clean technologies, it is expected that demand will increase to satisfy power generation in non-OECD countries, especially in Asia.258 In 2010 China, the US and India accounted for 70 percent of total world coal consumption and their share will increase to 75 percent in 2040.259 The extraction of coal implies mining activities which impact on ecosystems and could affect the health or workers and population near the extraction areas. Similarly, the utilization of coal releases large amounts of carbon dioxide into the atmosphere, strengthening the effects of global warming at regional and global level. Moreover, the use of this solid fuel for cooking and heating produces large amounts of air pollution in households putting the health of families at risk.260 Therefore, efforts are being concentrated on reducing production costs and developing clean technologies, such as coal gasification and liquefaction, to reduce their impact on the environment.261 Owing to the share of crude oil to total world energy supply, this non-renewable resource has become a strategic geopolitical factor in developed as well as in developing countries. Because of the versatility of crude oil and its derivates, they meet almost every requirement for energy use and services, especially in the transport sector.262 Indeed, 63 percent of the total increase in liquid fuel used from 2010 to 2040 is by the transport sector.263 According to the European Energy Agency, it is expected that the mid-depletion point of worldwide crude reserves will be reached in the next twenty years.264 As a consequence of the concerns about the future availability of crude oil as well as the political stability of export countries, the price of this commodity has greatly increased on international markets which threatens economic and social development. Oil prices shocks have caused significant dislocations in the economies of importing 258 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 114 – 115, 117 259 U.S. Energy Information Administration, International Energy Outlook 2013 (2013) 4 260 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 62 261 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 117 262 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 114; Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 48; EEA, Sustainable use and management of natural resources (2005) 41 263 U.S. Energy Information Administration, International Energy Outlook 2013 (2013) 2 264 EEA, Sustainable use and management of natural resources (2005) 41

88

The Extraction of Natural Resources in the Energy Sector

nations because of their strong dependence on oil.265 For instance, about 50 percent of the fossil energy for the EU economy is imported; furthermore, the dependency of Europe on imported fossil fuels has increased steadily since 1990 while domestic extraction has been in constant decline. Moreover, it is forecast that this development will continue in the future since the increase of consumption of fossil fuels is being driven by the expansion of the transport, household and service sectors.266 The process of crude oil extraction is performed in four stages. The first stage is exploration which can be defined as gathering information about the hydrocarbons in porous rocks beneath the surface. The methods for this initial phase are airborne surveys or satellite imaging used in rugged terrain. These have little impact on the surface. However, there is an additional method, called seismic survey which uses acoustic waves produced at the surface to penetrate the earth’s crust and reflect back from surface rock. These acoustic sources are produced either by small explosive charges significantly affecting wildlife and people or by vibrations produced by trucks which in turn considerably affect the land surface, especially on sensitive soils.267 Exploratory drilling is the second phase of the extraction. This process determines the existence of oil or gas beneath the surface by drilling exploratory wells. The findings during this process will establish the size and nature of the reservoir and its commercial potential.268 The third phase is development and production. Large reservoirs require several development wells to extract oil and gas. After that, a central production facility gathers and separates the produced fluids (gas, oil and water). The crude oil and gas are transported through pipelines or trucks for subsequent shipment to national or international markets.269 After reaching the economic limit of oil and gas recovery, the field is finally abandoned. In this last stage, the infrastructure must be removed and the area of the extraction restored und reclaimed. Abandoned wells must be plugged to prevent leaks, especially into nearby groundwater aquifers.270 Each of these phases has a negative impact

265 ; Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 49 266 EEA, Sustainable use and management of natural resources (2005) 41 267 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 53 268 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 54 269 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 54 270 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 55

Energy in an International Context

89

on the environment which range from air, water, soil pollution, loss of biodiversity and landscape destruction to pipeline spills.271 Externalities caused by crude oil extraction cover a wide geographical spectrum. Local ecosystems and their services are the first to be affected by exploitation. In the first stages of the process of extraction, land requires to be cleared for the development of infrastructure and for the construction of access routes and pipelines.272 Such developments have, in turn, several effects on the availability and quality of goods provided by the ecosystem, such as the loss of biodiversity and decrease of food sources for human and livestock. In addition, the hydrological impact constitutes another concern during the extraction of fossil fuels at both local and regional levels. Groundwater sources are polluted by water extraction (briny water brought up with oil and gas), drilling and well treatment fluids, process and drainage water, sewage and domestic waste. In fact, the acidification of water caused by the combustion of fossil fuels leads to significant changes in the chemical composition of water affecting soils and ecosystems.273 Furthermore, existing watercourses and drainage suffer alterations due to excavation and infill for roads and infrastructure.274 A further negative consequence at global level is the emission of toxic gases from oil and gas operations which have their origins in gas flaring, venting or purging; in the combustion processes; in dust dispersal; and in gas leaks. All these impacts affect air quality and exert a significant pressure on the regenerating capacity of ecosystems. In the case of GHG emissions, these gasses modify the evaporationtranspiration process responsible for climate regulation.275 Soil compaction and erosion represent another externality linked to the development of oil. If ecosystems are not able to support soil formation and nutrient generation, food supplies can be seriously affected. Apart from that, the construction of access roads, drilling and production sites and pipelines as well as contamination from discharges can destroy and modify vegetation and the biological diversity in the

271 EEA, Sustainable use and management of natural resources (2005) 41 272 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 35; Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 58 273 WEHAB Working Group, A Framework for Action on Energy (2002) 9 274 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 35; Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 56; 275 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 56; McNeely and Mainka, Conservation for a New Era (2009) 41

90

The Extraction of Natural Resources in the Energy Sector

area of extraction.276 Given all these facts, the disruption of habitats generated by the exploitation process has a significant impact on biodiversity and wildlife and affects the life and livelihood of people in the area of the project. The severity of the environmental damages resulted from the extraction fossil fuels is associated not only with the stages in the extraction process and the size of the field but also with the nature of the area where the fossil fuel extraction takes place.277 Sensitive areas, such as rainforest, mangroves and marine environments are particularly endangered by the fossil fuel exploitation. Rainforests possess a high concentration of biodiversity ; therefore, logging activities in the extraction area have a negative impact on biodiversity, soils and water reserves. In addition, rainforest have been storing carbon for millions of years. The extraction of fossil fuels causes the release of the carbon into the atmosphere and aggravates the negative effects of global warming. Similarly, mangroves, sea grasses and salt marsh grasses, also referred to as ‘blue carbon’, constitute excellent carbon sequesters. Nevertheless, extraction activities in these areas harm the potential storage of carbon as well as the biochemical processes that support marine life. In fact, dredging or digging activities in mangroves impact on fisheries and irrigation due to the release of acid sulphates from marine clay soils into the air. Furthermore, dredging in coastal areas modifies the intertidal hydrology over large areas adversely affecting animals and plants.278 In conclusion, sensitive areas are jeopardized by any unsustainable development of energy sources. The human environment is also influenced by the extraction of fossil fuels. Ecosystems provide cultural services which are non-material benefits that contribute to human development. Moreover, human values and the behaviour of many cultures across the world depend on the interaction with the environment.279 Therefore, environmental impact caused by the extraction of fossil fuels can seriously affect the life and livelihood of people inside as well as outside the exploitation area and give rise human rights violation. In this context, indigenous people and local communities who live in rainforests are specially affected by fossil fuel extraction. Customary land use, patterns of fishing, hunting and trapping and the cultural heritage of these groups is tightly linked to 276 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 31 – 32; Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 56 277 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 35, 58 – 59 278 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 58 279 McNeely and Mainka, Conservation for a New Era (2009) 41

Energy in an International Context

91

the quality of environmental media as well as to access to renewable resources.280 In addition, the extraction of fossil fuels has a regional impact in that fine particles originating from their production and use pollute soil, water and air. Acid rain destroys soils and vegetation, and contaminates groundwater reserves. These, in turn, harm human health and the sources that provide food and water.281 Since the realization of human rights depends on accessibility to resources as well as the quality of the environment, the impact from the extraction of non-renewable energy resources on the environment can limit the exercise of human rights. This analysis demonstrates on the one hand the strong dependency of people on the generation of fossil fuels. On the other hand, it illustrates the negative consequences that the extraction of energy resources in particular has on the environment and the realization of human rights. In this context, in Chapter D, the present study will deal with those human rights affected by the extraction of fossil fuels, especially of oil. b.

Renewable Energy Resources: Keystones of the Development of Clean Energies

Developed and developing countries are exploring new ways to improve energy generation to ensure sustainable development.282 Due to the potential of renewable resources to provide clean energy services and their more even distribution throughout the world, these sources have been perceived as an alternative for ensuring energy supply, reducing the dependency of oil imports and addressing the negative environmental effects caused by the development and use of fossil fuels, especially their adverse impact on climate change.283 Currently, renewable energy sources cover 14 percent of the world’s total energy demand.284 Indeed, the share of renewable energy sources in world energy consumption, especially in the power generation sector, has increased over the 280 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 56 281 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 62 282 Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 69, 85 283 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 2,12, 14 284 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 14, 115; Hodas ‘Energy, climate change and sustainable development’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 11; Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 69, 85

92

The Extraction of Natural Resources in the Energy Sector

last decade. Even though renewable energy can be obtained from different sources, the economic potential for their development depends on the technology and research capacities as well as on heavy financial and capital investments.285 Renewable energy can be generated by wind, tidal, solar, geothermal, hydrogen, hydroelectric and biomass energy plants. The generation of this energy has been perceived as a clean and environmentally friendly alternative for the achievement of sustainable development and for energy security. Wind energy is based on a clean and competitive technology for power generation because it generates neither atmospheric emissions nor air pollution. Environmental impact caused by this technology are basically visual pollution, noise and the death of migratory birds; yet, these problems can be minimized by the construction of offshore wind generators or their careful placement outside migratory corridors.286 Another environmentally friendly alternative of energy generation is solar energy especially for developing countries situated in the Sun Belt. One of the advantages of photovoltaic energy is that it can be easily provided in rural areas and requires little maintenance. Nevertheless, current solar cell technology is relatively inefficient since it requires large arrays of cells in order to generate useful quantities of energy.287 Geothermal and hydrogen energy are other clean and efficient energy sources. The former is produced and stored in the Earth but limited to areas located on the tectonic plates288 while hydrogen is expected to be the fuel of the future. It is produced from natural gas as well as from photovoltaic or wind-power electrolysis.289 Water and biomass are further sources of energy. Due to the impact of their generation on the environment and on man, the exploitation of both renewable energy sources will be addressed below. 285 Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 79 286 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 14; Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 86; Lyster and Bradbrook, Energy Law and the Environment (2006) 20 287 IUCN and others, Caring for the Earth: A Strategy for Sustainable Living (1991) 93; UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 14; Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 86; Lyster and Bradbrook, Energy Law and the Environment (2006) 16 288 Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 79 289 Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 87

Energy in an International Context

93

Hydroelectric Power World net power generation will increase by 93 percent between 2010 and 2040. Furthermore, it is projected that almost 80 percent of the increase in renewable power generation will be derived from hydropower and wind power.290 Regarding hydroelectricity, it can be generated from all sizes of rivers and streams. For this purpose, about 45,000 dams have been built worldwide in the past century.291 Large dams provide about 6 percent of the world’s energy and between 20 and 25 percent of the world’s electricity.292 In fact, it is expected that from 2004 to 2030, power generation from hydropower will increase at an average annual rate of 1.7 percent.293 Moreover, hydroelectric power is the most important renewable energy source particularly in developing countries owing of its minimal running costs and its conversion efficiency of near 100 percent.294 In effect, about 60 percent of electricity in Central and South America and 15 percent in Asia are based on hydropower.295 Although hydropower is an important source of energy, large-scale projects can cause significant environmental externalities on the environment. Building hydropower dams implies two basic preconditions: the inundation of the reservoir area and modification of the river flow. Flooding vast tracks of land enables the generation of energy. However, this causes loss of biodiversity, forest and wildlife habitat as well as the degradation of upstream catchment areas. Indeed, dammed water has given rise to rotting vegetation and carbon inflows from the basin. The result is that large amounts of GHG such as carbon dioxide and methane are released into the atmosphere.296 Similarly, hydropower dams have modified river flows. The slowdown of water velocity in river systems 290 U.S. Energy Information Administration, International Energy Outlook 2013 (2013) 5 291 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 33 292 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 14; McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 33 293 Erdelen W, ‘The other crisis’ (2009) vol 7 Natural Science Quarterly Newsletter 294 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 14, 30; McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 33; Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 86 295 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 77 296 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 92; McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 33; Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 86

94

The Extraction of Natural Resources in the Energy Sector

changes the patterns of nutrient transport in rivers, upsets fish migration and changes the composition of riparian habitats and coastal ecosystems. As a result, aquatic biodiversity is put at risk.297 Moreover, dams give rise to changes in seasonal flooding, thereby affecting the supply of nutrients to the soil.298 In addition, the distribution and location of natural resources are also compromised by dams. While some reservoirs benefits from ‘the creation of productive fringing wetland ecosystems with fish and waterfowl habitat opportunities’, others areas in the basin suffer from the impact on water quality and quantity, natural flooding, and species composition.299 In short, dams compromise the balance of ecosystems and the provision of ecosystem services which strongly depend on water. All these environmental impacts described above eventually lead to water stress, competing uses of water resources and the violation of human rights.300 A first impact of dams on humans is to recategorize the benefits and entitlements of local riparian users at regional, national and even global level.301 Property rights, access to water resources and water, and health are endangered in upstream as well as downstream areas. Displacement of people from productive areas and home is one of the most direct consequences of the inundation in reservoir areas. During the 20th century, between 30 and 60 million people were displaced due to dam construction. This had social and cultural effects, poverty and the disruption of environmental services.302 In addition, the risk of spreading diseases such as malaria increased in water reservoir areas so that health and lives of people was put in risk. Finally, the alteration of river flow affected the access to water and river resources so that people are neither able to consume fresh water nor access fisheries resources. Local cultures were also compromised by dams. Since ecosystems provide important cultural services, the flooding of land and territories of indigenous people and local communities 297 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 92; McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 33 298 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 33 299 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 76; World Commission on Dams, Dams and Development: A new framework for decision-making (2000) 92 300 Steiner and Hass, ‘The Report of the World Commission on Dams: Some implications for energy’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 79 301 Steiner and Hass, ‘The Report of the World Commission on Dams: Some implications for energy’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 143 302 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 77, 79

Energy in an International Context

95

causes a disruption in the culture and sources of livelihood of these people.303 The International Council of Monuments and Sites (ICOMOS) pointed out, e. g., that countless archaeological sites around the world have disappeared because of dam construction. In this context, environmental externalities produced by dams have also had a serious human impact. Biomass Energy Biomass currently meets from 12 percent to 14 percent of global energy demand including about 35 percent of energy requirements in developing countries.304 In rural areas of developing countries, energy is mainly generated from the burning of traditional biomass and used in household for cooking and heating.305 In addition to the domestic use of biomass, demand and consumption have increased in the transport sector. This sector of the economy is one of the main factors that have pushed up oil demand in many regions of the world. It is projected that the global share of total primary oil used for transportation will increase from 47 percent in 2005 to 52 percent in 2030.306 In view of this scenario, developed and emerging countries have encouraged the production of biofuels as part of their domestic plans. The International Energy Agency (IEA) expects a conservative scenario in that the demand for biofuels will rise from 2.3 percent in 2013 to 3.2 percent in 2015 in the transport sector.307 Moreover, the development of biofuels has been perceived at national level as a formidable sustainable development strategy to address social inequalities in rural areas of developing countries by enabling access to renewable energy and by improving people’s living conditions through the creation of employment and improved social infrastructure. Similarly, biofuels have been promoted at international level as an alternative, to diversify transportation fuel supplies, reduce dependence on oil imports from politically unstable countries and to enhance climate resilience.308 303 WEHAB Working Group, A Framework for Action on Energy (2002) 9 304 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 14; McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 34 305 IUCN and others, Caring for the Earth: A Strategy for Sustainable Living (1991) 89; UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (2000) 14; Ottinger, ‘Legal Framework for Energy for Sustainable Development’ in Adrian J Bradbrook and others (eds), The Law of Energy for Sustainable Development (2005) 103 306 International Energy Agency, World Energy Outlook 2007: China and India Insights (2007) 80 307 International Energy Agency, World Energy Outlook 2007: China and India Insights (2007) 592, 594 308 Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 87; Ottinger Richard L, ‘Biofuels – Potential, Problems & Solutions’ (2007) accessed 20 May 2011; Varghese Shiney,

96

The Extraction of Natural Resources in the Energy Sector

Bioenergy is stored solar energy obtained from biomass which is basically produced from non-fossil materials originating in photosynthesis, including forest, agricultural plants, wild or cultivated crops, and is used for industry, electricity production, transportation, heating and cooking.309 Obtaining energy from biomass requires either its combustion or its transformation into biofuels by way of a technological process. Depending on the raw material used for the bioenergy production, biofuels are categorized into three groups. The first group is called the first biofuel generation. This generation encompasses agrofuels which includes all types of fuels derived from agriculture and livestock products and are mainly extracted from food and feed crops, animal and agricultural by-products310 and transformed into fuels through well-established processing technologies.311 Bioenergy can be extracted either from solid fuels (e. g. wood, charcoal, forestry and crop residues, and agroindustrial and municipal waste), liquid fuels (e. g. ethanol, methanol and vegetable oils such as biodiesel) or gaseous fuels (e. g. biogas originated from the anaerobic respiration of biomass digesters).312 The second generation of biofuels includes fuels obtained either by conversion of cellulosic materials (e. g. switchgrass and agricultural waste) or by thermochemical or biochemical processes.313 Finally, the third generation of biofuels is planned to be produced from ‘energy-designed’ feedstock and processed by more efficient technologies than those used in current biofuel production.314 Since the largest part of biomass resource comes from agricultural cultivation and harvesting, recent energy-related policies at both national and international levels encourage the use of biomass for the

309

310 311

312 313 314

‘Biofuels and Global Water Challenges’ (2007) IATP accessed 7 October 2011 Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 87; Lyster and Bradbrook, Energy Law and the Environment (2006) 22; Eide, The right to food and the impact of liquid fuels (2008) 11; Mauremootoo, Biofuels and Invasive Species: Exploring the links between biofuels production systems and invasive species (2009)18 ‘By products’ are ‘solid, liquid and gaseous residues and wastes derived from biomass processing activities’ in FAO Forestry Department, ‘Unified Bioenergy Terminology UBT’ (2004) accessed 20 May 2011 FAO Forestry Department, ‘Unified Bioenergy Terminology UBT’ (2004) 18 accessed 20 May 2011; De Schutter, Building resilience: a human rights framework for world food and nutrition security (2008) 36 Par. 1; Mauremootoo, Biofuels and Invasive Species: Exploring the links between biofuels production systems and invasive species (2009)18 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 34 Mauremootoo, Biofuels and Invasive Species: Exploring the links between biofuels production systems and invasive species (IUCN 2009) 18 Mauremootoo, Biofuels and Invasive Species: Exploring the links between biofuels production systems and invasive species (IUCN 2009) 18

Energy in an International Context

97

production of first-generation biofuels.315 However, the unsustainable production of plant materials to generate fuel can lead to competing uses of resources needed for food production and compromise the quality and quantity of environmental media such as soil and water.316 To ensure the long-term profitability of biofuels, an intensive promotion of large-scale plantations and of an ‘extreme degree of monoculture production’ needs to be undertaken.317 This presupposes additional inputs of fossil fuels, the replacement of forest by monoculture biocrops and the use of pesticides and fertilizers. The combination of all these factors affects the chemical composition of the soils, the removal of important nutrients from land, and the consequent reduction of organic matter in the soil and the water retention capacity of the soil.318 Furthermore, the use of genetically modified organisms and the proliferation of invasive alien species constitute additional factors which, in conjunction with those mentioned above, lead to a loss of biodiversity.319 Water resources are also impacted by the production of agrofuels.320 During their production, multiple factors influence water quality and availability. These factors are the type of crop, the uses of water, the efficiency of irrigation methods and the geographical distribution of water. For instance, the average requirements of water necessary for the production of one litre of agrofuels are 2,500 l of crop evapotranspiration321 and 850 l of irrigation water. However, this average varies from region to region. While the volume of water needed for irrigation of rain-fed rapeseed crops in Europe is negligible, the amount of water required for the production of maize for a litre of ethanol in China requires on average 2,400 l of irrigation water.322 In this context, the inefficient use of water during the cultivation of biofuels and the type of crop cultivated can give rise to water 315 316 317 318 319 320 321

322

EEA, Sustainable use and management of natural resources (2005) 34 IUCN and others, Caring for the Earth: A Strategy for Sustainable Living (1991) 93 Eide, The right to food and the impact of liquid fuels (2008) 17 – 18 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 34 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 34 Steiner and Hass, ‘The Report of the World Commission on Dams: Some implications for energy’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 142 Evapotranspiration (ET) is referred as ‘the combination of two separate processes whereby water is lost on the one hand from the soil surface by evaporation and on the other hand from the crop by transpiration’ in Allen Richard G and others, ‘Crop evapotranspiration – Guidelines for computing crop water requirements’ (1998) FAO Irrigation and drainage paper 56, 2 < http://www2.webng.com/ bahirdarab/evapotranspiration.pdf> accessed 2 June 2011 Charlotte de Fraiture and others, Biofuels and implications for agricultural water use: blue impact of green energy (Water Policy 10 Supplement 1, 2008) 79

98

The Extraction of Natural Resources in the Energy Sector

depletion in regions where water is scarce. Another serious environmental impact of biofuel production relates to climate change. As explained above, bioenergy has been conceived as a mechanism to mitigate serious global warming effects. Nevertheless, the production of first generation biofuels can exacerbate the release of carbon dioxide into the atmosphere due to the increasing use of fossil fuels intended for the operation of machinery and the production of pesticides and fertilizer as well as for the clearing of forests to cultivate biocrops.323 All these effects on the environment accompanying the production of biofuels have a negative effect on human lives and survival. Water, soil and biodiversity are vital resources that enable the fulfilment of several human rights, such as the right to food, to water and to property. Shifts in land uses, scarcity of resources and the negative impact on the environment provoked by large-scale cultivation of agrofuels lead to strong competition between different stakeholders over natural resources which in turn can result in conflicts and security risks. An example of the consequences of producing firstgeneration biofuels on the realization of human rights is ‘land grabbing’ which is defined as a system of acquisition and concentration of vast extensions of arable land in developing countries by domestic or transnational enterprises in the agro-business sector.324 This phenomenon has caused the eviction of poor farmers and indigenous communities which condemn these vulnerable groups to poverty and displacement.325 Moreover, environmental pollution resulted from the use of pesticides has compromised the access of the population to food and water. In the light of this analysis, it is possible to establish a cause-and-effect relationship between extraction processes of energy resources and their impact on the environment and on human beings. In other words, the extent of an extraction project and the technological processes used for the extraction or exploitation of energy resources has a direct influence on the degree of environmental conservation and the implementation of human rights. This relationship derived from the analysis constitutes the factual framework for this investigation. After determining the causal link between extraction activities, environment and human needs, it is necessary to address the legal foundations of the property rights over energy resources, and to clarify the regulation of energy generation in international law to allow laying down the duties and rights resulting from the extraction of energy resources.

323 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 34 324 UNGA, The Right to Food (A/62/289, 2007) Par. 38 325 UNGA, The Right to Food (A/62/289, 2007) Par. 39; Mignorance, The Flow of Palm Oil Colombian-Belgium/Europe: A Study from a Human Rights Perspective (2007)36 – 41

Energy in an International Context

3.

99

Property and Natural Resources

With the aim of defining the rights and duties that the extraction of energy resources generates, it is necessary to ascertain the legal foundation of ownership over energy resources. For this purpose, a definition and the categories of ownership will be addressed first. Thereafter, this work will deal with the permanent sovereignty over natural resources. On the basis of the previous analyses, the investigation will finally explain the property rights over renewable and non-renewable energy resources. a.

Property: Definitions and Categories

Property has been defined from different perspectives. Two main streams in legal literature conceptualize property from two different approaches, viz. the conceptualist approach and the instrumentalist approach. The fundaments of the conceptualist approach are based on the idea that property is a ‘thing’ and on the primacy of the right to exclude. This right ensures the stable possession of ‘the thing’ over time by preventing non-consensual takers and users from disposing of the object. According to this approach, private ownership constitutes the perfect characterization of property within the framework of exclusion rights. However, this approach also has its limitations. For instance, the idea of property as a ‘thing’ does not clarify the status of ‘immaterial things’, such as the spiritual relationship of indigenous people with their land and resources. Beyond this notion of ownership, the prevalent conceptualist view looks at property as a ‘bundle of rights’. According to this conception, property relationships are founded on rights, powers, privileges, immunity and duties.326 Honor¦ listed a number of rights that are part of this ‘bundle of rights’: ‘Ownership comprises the right to possess, the right to use, the right to manage, the right to the income from the thing, the right to the capital, the right to security, the rights or incidents of transmissibility and absence of term, the prohibition of harmful use, liability to execution, and the incident of residuary : this makes eleven leading incidents.’327

By contrast, the instrumentalist approach conceptualizes property as a power. On the one hand, property is defined as social relations of powers that grant certain forms of power to owners. This approach views property as an institution or system of rules which have been developed not only with the aim to entitle 326 Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 22 – 23, 25 327 Honor¦, ‘Ownership’ in Guest, Oxford essays in case-law : A collaborative work (1961) 113

100

The Extraction of Natural Resources in the Energy Sector

people to control their goods but also to set certain limits to this power. This definition of property places importance on the social and legal effects of property and also enables a clear distinction between public and private spheres. On the other hand, instrumentalists also understand property as the power of the sovereign to govern property relations. However, it should be pointed out that this conception of property as sovereignty is not absolute. In effect, changes in the power balance do not immediately affect previous property relationships such as those of indigenous people and their ancestral territory.328 Apart from these approaches, a further definition of property considers ownership as the totality of rights which an owner has over a thing and which, in consequence, excludes anyone else. ‘An owner is he who has the dominion over the property, the right to possession and control of property, including the right to protect and defend such possession against the intrusion or trespass of others, the right to dispose of a thing as one pleases, provided that the rights of others are not thereby infringed or some laws violated. Therefore, ownership encompasses the power of enjoyment; the power to determine the use to which the thing is to be put; the right to deal with, produce or to destroy the thing, as the owner pleases; possession, which includes the right to exclude others; the right of alienation inter vivos; and the power to charge the thing as a security.’329

From these definitions, it is possible to conclude that property encompasses a number of rights but also duties whose purpose is to factually and legally define the powers that the owners exercise over a thing. Despite of these various definitions developed in literature, the national legislator is ultimately he who establishes the nature and scope of the definition of property applicable in a specific domestic legal system. However, it should not be overlooked that legislative work is strongly influenced by several international factors. With regard to the regulation of property, legislators must take into account the following factors: the growing inclusion of ‘regulatory expropriation’ laws through bilateral and multilateral investments agreements, the enforcement of human right instruments and the incorporation of conservation standards based on principles of international environmental law.330In addition to the conceptualization of

328 Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 22, 28, 30 329 Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 117 330 Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 21

Energy in an International Context

101

property, another factor which must be analysed to clarify ownership of energy resources, is the legal nature of the ‘commons’. ‘Commons’ are things subject to ownership. The theory related to commons is a legal theory which has been flourishing in recent years. It lays down four broad categories: open access commons, community commons, private property and state property. Open access commons covers those resources of the use and free access of which is open to all. The use of and access to these resources and the appropriation of their fruits are not limited by a right of exclusion. In other words, each user is able to appropriate as many of these resources as possible, provided there is an absence of mutual restrain. Examples of these commons are the atmosphere and high seas fishing.331 Similarly, community commons are resources whose access and use are common to all members of a community, but restricted to non-members. The characteristic of commons is their indivisibility. This means that the resources belongs all members of the community who determine the management, monitoring and set rules to prevent the scarcity of the resource.332 Regarding public property, the title to property of resources falling under this category belongs to the State. The difference between open access commons and public property is the degree of the restriction of the liberty or right to use or access to resources. In many jurisdictions, several resources, especially those strategic for the development of the State (e. g. minerals, water, oil and natural gas, geothermal resources), belong to the State so that access by the public or citizens to public resources is clearly limited. Moreover, administrators of public property are subject to strict additional legal and administrative regulations and responsibilities concerning the management of such property.333 Finally, private property is a title, reserved for individuals who by right are empowered to exclude others.334 The regulation of ownership of a resource depends on the category of common under which it falls. In energy sector, state-owned natural resources, for example, can become private property through a form of co-ownership as in the case of leasing contracts in the oil and gas sector. Relating to the nature of the 331 Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 35 – 36 332 Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 37 – 38 333 Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 38 – 39 334 Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 39

102

The Extraction of Natural Resources in the Energy Sector

common, conflicting interests over the common can also affect the exercise of the right to ownership. In the case of gas and oil, in some national legislation the land and surface resources may belong to indigenous communities while the State reserves the right to ownership of sub-surface resources. Bearing in mind the complex interrelations, the categorization of commons is particularly useful to provide an overview of the different owners and the scope of their rights and duties. Before addressing the regulation of ownership of energy resources, the international law principle of the permanent sovereignty over natural resources will be analysed first since it lays down the foundation of property regulation over natural resources.

b.

Permanent Sovereignty over Natural Resources

The origin of the principle of permanent sovereignty over natural resources can be analysed from a historical and legal approach. From an historical approach, this principle has its origins in the struggle of former colonies to achieve political and economic self-determination after World War II. Since the early 1950s, the principle of the permanent sovereignty over natural resources has been invoked by peoples emerging from colonial rule to ensure the economic benefit from the extraction of natural resources in their territories. Furthermore, the principle granted newly independent States the legal support to prevent or redress interference, derived from oppressive and inequitable contracts and other arrangements agreed by other States and foreign companies, with their economic sovereignty.335 In this context, the main historical motivation of the principle was to ensure and to strengthen the economic development of newly independent countries through the use and exploitation of their natural resources.336 From a legal perspective, the principle of permanent sovereignty over natural resources is rooted in people’s sovereignty to freely determine their political status and pursue their economic, social and cultural development.337 Indeed, the principle of permanent sovereignty over natural resources constitutes a basic element for concretizing the right to self-determination in accordance with the spirit and principles of the United Nations Charter.338 Due to the importance of this principle to peace and development, it has been incorporated into several international instruments. The General Assembly resolution 1515 (XV) of 15 335 Daes, Indigenous peoples’ permanent sovereignty over natural resources (2004) Par. 6 336 UNGA, Right to exploit freely natural wealth and resources (A/RES/626(VII), 1952) Preamble 337 UNGA, Right to exploit freely natural wealth and resources (A/RES/626(VII), 1952) Preamble 338 Charter of United Nations (1945), art 1(2); UNGA, ‘Permanent sovereignty over natural resources’ (A/RES/1803(XVII), 1962) Preamble

Energy in an International Context

103

December 1960 was the first instrument to recommended that for the sovereign right of every State to dispose of its wealth and its natural resources be respected.339 Subsequently, in its Resolution 1803 (XVII) of 14 December 1962, the General Assembly acknowledged for the first time the right of peoples and nations to permanent sovereignty over their natural wealth and resources.340 However, it was not until 1966 that the principle achieved the status of a general principle of international law when the Human Rights Covenants incorporated the right of all peoples to freely dispose of their natural wealth and resources in its Article 1(2). The principle was likewise incorporated into environmental law. Principle 21 of the Stockholm Declaration, Principle 2 of the Rio Declaration and Article 3 of the Biodiversity Convention ratified the international recognition of the freedom of all states to manage and utilize the natural resources within its jurisdiction as a guiding principle to formulate and implement environmental and developmental policies. In the light of this, the principle of permanent sovereignty over natural resources has been integrated in human rights treaties and international environmental law. The principle of permanent sovereignty over natural resources can be defined as the right of peoples and nations to freely use and exploit their natural resources in the interest of their national development and the well-being of their population.341 For a better understanding of the connotation and scope of this principle of international law, the subjective and objective components of this definition will be analysed hereafter. According to General Assembly Resolution 1803 (XVII), the subjects entitled to exercise the right to permanent sovereignty over natural resources are ‘peoples and nations’. However, the scope ratione personae of such a right can vary depending on the area of international law from which the treaty is derived. International environmental and economic law treaties342 grant States the right to permanent sovereignty since this principle is rooted in the promotion of economic development. By contrast, human rights treaties grant this right to ‘peoples’. The term ‘peoples’ was originally meant to refer those people unable to exercise their right to political self-determination. As decolonization wound down, States became subjects entitled to the right to permanent sovereignty, provided that States respect the rights of ‘peoples’ to 339 UNGA, Concerned Action for economic development or economically less developed countries (A/RES/1515(XV), 1960) Par. 5 340 UNGA, ‘Permanent sovereignty over natural resources’ (A/RES/1803(XVII), 1962) Par. 1 341 UNGA, Right to exploit freely natural wealth and resources (A/RES/626(VII), 1952) Preamble; UNGA, ‘Permanent sovereignty over natural resources’ (A/RES/1803(XVII), 1962) Par. 1 342 Declaration of the Stockholm United Nations Conference on the Human Environment (1972), principle 21; Rio Declaration on Environment and Development (1992), principle 2; Convention on Biological Diversity (1992), art 3; Charter of Economic Rights and Duties of States (1974), art 2

104

The Extraction of Natural Resources in the Energy Sector

access the natural wealth and resources in their regions.343 Regarding the term ‘natural resources’, this is one objective element of the right to permanent sovereignty. Although a legally oriented definition of natural resources has not yet been made either by international environmental law treaties or in international law literature, natural resources can be characterized in terms of the right to permanent sovereignty over all physical natural goods as well as the intrinsic and economic value and the integrity of ecological systems, including the sea, air, land, flora and fauna.344 Despite the lack of a legal definition of natural resources, international instruments, such General Assembly Resolution 3016 (XXVII), determined the resources which fall under the scope of the principle of permanent sovereignty. According to this resolution, natural resources are all those located on land within international boundaries of States, as well as those in the seabed and the subsoil within their national jurisdiction and in superjacent water bodies.345 According to these elements, States are entitled to freely dispose of all natural resources within their jurisdiction. However, since it is limited by certain rules, the exercise of its sovereignty is not absolute. The limits to the right of States to permanent sovereignty over natural resources are laid down in its definition which remarks that the use and exploitation of natural resources is to be carried out in the interest of their national development and the well-being of the people. These limitations are duties imposed by international law to restrict the absolute sovereignty of the State to use and extract natural resources. In fact, several General Assembly resolutions related to the right to permanent sovereignty lay out the duties of the State. According to them, the State is obliged to promote national development and to ensure that benefits from such exploitation are earmarked for the development and well-being of the population.346 Likewise, international environmental law, human rights and international investment law have indirectly imposed limitations on the principle to permanent sovereignty over natural resources. In the area of conservation and environment, General Assembly Resolution 1831 (XVII) ‘Economic Development and Conservation’ stresses the role of natural resources, flora and fauna, to the economic development of the countries but at the same time recognizes that economic development can jeopardize natural resources and environment if development does not pay due attention to

343 344 345 346

Schrijver, Sovereignty over natural resources (1995) 8 – 9 Schrijver, Sovereignty over natural resources (1995) 16 – 15 UNGA, Permanent sovereignty over natural resources (A/RES/3016(XXVII), 1972) Par. 1 UNGA, Integrated economic development and commercial agreements (A/RES/523(VI), 1952) Preamble; UNGA, Right to exploit freely natural wealth and resources (A/RES/626 (VII), 1952) Par. 1; UNGA, ‘Permanent sovereignty over natural resources’ (A/RES/1803 (XVII), 1962) Par. 1; Schrijver, Sovereignty over natural resources (1995) 286

Energy in an International Context

105

conservation and restoration.347 The 1975 Stockholm Declaration echoes this concern by pointing out the importance of careful planning and management of natural resources in order to protect the benefits.348 Other international instruments set standards for nature conservation and the utilization of natural resources. The Charter of Economic Rights and Duties of the States recommends States to establish their own environmental policies in conformity with their responsibility to protect, preserve and enhance the environment for the present and future generations.349 Similarly, the World Charter for Nature has established principles to guide the activities of Member States regarding the conservation of natural resources.350 Although the freedom of the States to control the use and management of natural resources on their has been prioritized in international environmental law on the basis of the principle of the permanent sovereignty over natural resources, there is a clear tendency, derived from UN resolutions and environmental treaty law, to impose duties on the States to ensure that the management and conservation of natural resources works to the benefit of present and future generations. Indeed, the norms and mechanisms embodied in these instruments of international law make it possible to reconcile economic development with environmental protection as expressed in the concept of sustainable development.351 In the case of human rights, the restrictions on the right of the State to permanent sovereignty over natural resources are quoted in Article 1 (2) of both the Human Rights Covenants which state that the exercise of the right to permanent sovereignty should be based on the public benefit and in no case deprive people of their livelihood. The African Charter on Human and People’s Rights has likewise ratified this limitation in its Article 21 (1) by stating that the right to permanent sovereignty should serve the interest of the people and in no case deprive people of the freedom to dispose of their resources. In case of the Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria, the African Commission on Human Rights reaffirms the right of the States to extract natural resources within their jurisdiction as long as the human rights of the population are protected by the State.352 Thus, human rights

347 UNGA, Economic Development and Conservation of Nature (A/RES/1831(XVII), 1962) Preamble 348 Declaration of the Stockholm United Nations Conference on the Human Environment (1972), principle 2, 13 349 Charter of Economic Rights and Duties of States (1974), art 30 350 World Charter for Nature (1982), Preamble, Par. 10 351 ICJ, Gabcˇ†kovo-Nagymaros Project (Hungary v Slovakia. ICJ Reports 1997, Par. 140 352 ACmHPR, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria (2002) no 155/96, Par. 54

106

The Extraction of Natural Resources in the Energy Sector

constitute an additional crucial element to be taken into consideration by States when ruling over the use and management of their natural resources. Owing to the strategic importance of the development of natural resources for economic development and international trade, States have strengthened the exercise of their sovereignty over natural resources by controlling ownership of them. In fact, since the evolution of the concept of permanent sovereignty, certain strategic energy resources such as oil and gas have been the subject of nationalization. Consequently, natural resource contracts have been regarded as a temporary alienation of inherent rights liable to be modified or eliminated at any time.353 Given the fact of the significance of foreign investments, whether public or private, for the development of natural resources, new international standards for the regulation of foreign property and expropriation have been developed at international level to protect capital inflows from possible nationalization.354 Consequently, these mechanisms constitute additional restrictions which limit the States’ authority to regulate ownership of natural resources.

c.

Ownership of Energy Resources

Property law impacts on development of legal principles governing energy and natural resources. Therefore, a major concern of energy law is to regulate the ownership of energy resources. On the one hand, property regulation besides being the foundation for institutional structures in charge of resource exploitation and conservation, constitutes the foundation for the control of and access to natural resources. On the other hand, property law also rules on the responsibilities derived from the development of energy and other natural resources. Accordingly, a ruling on the ownership of energy resources is a decisive step for striking a balance between economic growth, social equity and ecological goals. However, the effectiveness of property regulations is now being challenged by new factors such as climate change, resource scarcity and the need for greater energy security.355 The regulation of the ownership of natural resources has been influenced by the two approaches to property mentioned outlined above. One important right 353 Higgins ‘Natural Resources in the Case Law of the International Court’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development (1999) 92, Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 122; 124 354 UNGA, Economic Development and Conservation of Nature (A/RES/1803(XVII), 1962) 2 – 4 355 McHarg and others, ‘Property and the Law in Energy and Natural Resources’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 1, 3 – 4

Energy in an International Context

107

included in the ‘bundle of rights’ of the conceptualist approach is the right of use. The conception of this right is based on the free use of whatever one’s owns. This, however, poses a challenge to the regulation of ownership of natural resources since this freedom may entail serious pressure on environmental and natural resources.356 In order to prevent threats to the environment, the ‘bundle of rights’ also proposes duties that limit the exercise of the right to use or to exclude. Accordingly, ‘the prohibition of harmful use’, pointed out by Honor¦ represents, from an environmentalist point of view, a restriction of the owner’s right of use and his enjoyment of the object being owned.357 This inherent social and environmental obligation thus provides a balance between the strong legal protection of private property on one hand and environmental interests on the other. This limitation has been embodied in several principles of international environmental law, such as the concept of sustainable development, the precautionary principle or the principle of intergenerational equity.358 By contrast, the instrumentalist view regards property as a legal right linked to the creation of benefits from a valuable resource. According to this approach, ownership is an institution which protects utility or welfare by establishing rules on the benefits expected from a particular resource.359 Both approaches have influenced the concept of ownership of energy resources. In addition to these conceptualizations, two decisive factors underpin the foundation for the regulation of property in domestic law. These are: the strategic value of a resource for the economic development of the country and the level of control that the State is willing to exercise by virtue of its right to permanent sovereignty over natural resources. In the energy and natural resources sector, the national regulation of ownership of natural resources depends on several factors, viz. the national legal system, the location of natural resources and the strategic importance of the resource. Regarding the national legal system, ownership of natural resources is recognized as an individual’s right in some countries. In others, the State pursues a national model of energy and resource ownership. In some cases, the right of the State to manage the resources within its territory may coexist with systems 356 McHarg and others, ‘Property and the Law in Energy and Natural Resources’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 10 357 Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 27 358 Ronne, ‘Public and Private Rights to Natural Resources and Differences in their Protection?’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 79 359 Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 31

108

The Extraction of Natural Resources in the Energy Sector

of private property rights under which the State grants third parties legal instruments and titles for the development of such resources. Similarly, there are special property regimes related to land and natural resources that are based on customary and long-standing patterns of utilization and cultural contexts. This is the case with indigenous peoples, e. g.360 On the basis of these different regimes, the State, operators and other stakeholders have different expectations of property-linked rights. While operators are interested in the recognition of exclusive rights to the resources located in a particular geographical area, the State only grants a specific right to extract or harvest a particular resource.361 On the other hand, other stakeholders, such as indigenous peoples, are interested in maintaining a link between ownership and their ancestral territories. With regard to location, the ownership of energy resources depends on whether these are located onshore or offshore. Under general international law, States have permanent sovereignty over natural onshore resources. Consequently, they are free to determine if soil energy resources are owned by the State or by private landowners. By contrast, international law does not recognize absolute state ownership over offshore resources such as oil and gas. However, States have the sovereign rights to explore and exploit natural resources located on the continental shelf within their functional jurisdiction. Accordingly, States can only control but not ‘own’ offshore resources.362 Beyond national legislation and the location of natural resources, the factor that plays a crucial role in property regulation is the strategic value of the resource for the development of the country. Consequently, the legal regime, to which ownership of renewable and non-renewable resources is subject, may differ according to the strategic interest of the State. The regulation of the ownership of non-renewable energy resources constitutes an essential point for the regulation of the energy sector per se. Several factors influence property arrangements for such resources, such as a country’s socio-political and historical background, its legal system and domestic legislation. In the particular case of oil and gas resources, national legal and regulatory regimes play a decisive role in the establishment of rules and procedures governing the allocation, maintenance, transfer and cancelation of rights and the obligations related to such resources. Similarly, national jurisdiction determines 360 McHarg and others, ‘Property and the Law in Energy and Natural Resources’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 1 361 Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 32 362 Ronne, ‘Public and Private Rights to Natural Resources and Differences in their Protection?’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 64 – 65

Energy in an International Context

109

if ownership of such resources is granted either to the State or to a private entity.363 This particular point is important to determine the scope of rights and responsibilities linked to the development of oil and gas resources. With regard to determining ownership of oil and gas resources, literature has developed two theories. The first stems from the idea that States are the owners of natural resources. Under international law, on the basis of the principle of permanent sovereignty over natural resources States have the right to grant property titles. According to this, the dominium directum (the dominium of the soil) is granted to the State and it is distinct from the dominium utile (the possessory title), the right to use and profit from the soil. This means on the one hand that subsoil resources are owned and controlled by the State while the land owners are entitled to compensation for the loss of the surface rights. On the other hand, the State has the right to grant private and public entities rights to extract and produce state-owned natural resources. These rights are generally limited to the rights to use, manage, control or exercise the usufruct from these resources. In order to implement these rights, several different oil agreements have been developed, for example: traditional concession, production sharing contracts (PSC), risk service contracts, simple service contracts and joint venture agreements.364 In short, according to this theory, the State has on the basis of its sovereignty the absolute right to rule on the ownership of natural resources. By contrast, the second theory is based on the idea that ownership over mineral resources is granted to private or public entities as is the case in the USA. However, this theory has two different approaches regarding the appropriation of non-renewable energy resources. In some jurisdictions, ownership of such resources is granted to the owner of the land surface or subsoil where the oil or natural gas is located while in other jurisdictions, the ownership of oil and gas in situ is only possible when the resource has been produced and is subject of possession.365 Due to these two contrasting perspectives, three main theories have been developed in the US to govern ownership of oil and gas resources. The first one is the absolute ownership theory. According to it, a land owner has title to the oil and gas located beneath his land. In other words, a land owner ‘who extracts oil or gas form a well within the surface of his land acquires absolute 363 Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 115 364 Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 120, 125 365 Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 118

110

The Extraction of Natural Resources in the Energy Sector

ownership of the substance, even if it is drained from the surface of another person’s land.’366 Since according to this theory there is no co-ownership, the land owner loses his title to an adjacent operator if oil migrates to the adjacent land and is produced out of a neighbour’s well. The second theory is the ‘ownership in place’ theory for oil and gas. This theory proposes that the first person to collect oil or gas owns that resource and acquires absolute ownership rights over it even if it is collected from the land of another owner. The ownership of such resources is therefore determined by the ‘rule to capture’.367 Finally, the qualified theory of ownership is based on the assumption that minerals are part of the soil. Therefore, exploration and exploitation rights of such resource are based on agreements between land owner and miner (e. g. mining leases). Consequently, owners of a common reservoir are collective owners who have equal rights to exploit a proportionate part of the oil and gas.368 On the basis of the different views of the ownership of mineral resources, it is possible to conclude that, in the exercise of their sovereign discretion, States control the ownership of non-renewable resources. Accordingly, the State decides the extent to which the power of disposal over property shifts between ownership of land surface and ownership of subsoil resources. Regarding the regulation of ownership of renewable energy resources, this varies depending on the type of resource involved in energy generation. Biomass, wind and solar energy are produced from natural resources that can be used (wind and solar sources) or owned (land) by private entities so that their extraction is governed by national private law.369 In the case of biofuels, one important element for the production of feedstock for use as bioenergy is the soil. With the aim to ensure long-term profitability of biofuels in the global market, a structural transformation of agriculture and land holdings is required.370 Accordingly, property regimes are adjusted to give way to large investment funding to group together large tracts of land. Several governments, especially in developing countries, encourage large-scale national and foreign investments by facilitating access to land for investors.371 In effect, domestic or 366 Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 119 – 120 367 Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 119 368 Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 119 – 120 369 Lyster and Bradbrook, Energy Law and the Environment (2006) 31 370 Eide, The right to food and the impact of liquid fuels (2008) 17 – 18 371 Eide, The right to food and the impact of liquid fuels (2008) 17 – 18

Energy in an International Context

111

transnational enterprises in the agro-business sector buy or lease large lots of arable land from the host-state. In some cases, States even support these enterprises by forcing farmers off their land for the purpose of producing food or feedstock for biofuels.372 In the light of this background, ownership of land for the production of feedstock is mostly concentrated in private hands under the auspices of the State. In the case of hydropower, ownership is governed mainly by public administrative law since rivers remains the property of the State. According to the World Commission of Dams (WCD), this type of energy is being promoted as a means of meeting needs for water and energy services and as a long-term strategic investment with major national and macro-economic benefits. Due to the size of these infrastructural projects and the significant financial investment required, most developers in hydropower sector are public utilities.373 Since hydroelectric generation is a major national development strategy, States provide conditions and facilities necessary for the development of these large-scale projects such as the expropriation of land or the construction of associated facilities and infrastructure. Regarding the ownership of the land where the dam is planned to be built, its regulation is based on the premise that hydropower dams represent a strategic infrastructure and serve the common good. This conception allows the expeditious expropriation of land in private hands. It should be noted that States grant private investors concessions or licensees to participate in dam construction, development and operation. Their interests, in particular those relating to foreign investment and ownership, are protected under international investment agreements. In the light of this analysis, it is possible to conclude that States on the basis of the principle of permanent sovereignty over natural resources, are empowered to control the ownership of energy resources. However, the regulation of energy resource ownership also depends on the strategic value of a resource for energy generation. In effect, some legislation grants private entities ownership over renewable as well as non-renewable resources. In contrast thereto, under other legislation, ownership over natural resources, particularly over non-renewable resources, is exclusively reserved for sovereign states as these resources are considered strategic for the development of a country. Consequently, their exploitation is carried out either by the State itself through state-owned companies or by granting private investors concessions for their development.374 372 UNGA, The Right to Food (A/62/289, 2007) Par. 38 373 Bosshard Peter, ‘The Dam Industry, the World Commission of Dams and HSAF Process’ (2010) vol 3(2) Water Alternatives 58 – 70, 59; World Commission on Dams, Dams and Development: A new framework for decision-making (2000) 11, 14, 20 – 21 374 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 51

112

The Extraction of Natural Resources in the Energy Sector

4.

Energy Generation in International Law

a.

Energy Law in International Law

Contemporary energy law has been conceptualized as a body of policies, legislations and legal regulatory framework which are part of public administrative law and govern access to energy sources and energy development through specific legal instruments and tools (e. g. contracts and agreements).375 A further definition of energy law developed by Bradbrook was deduced from the characterization of the rights and obligations as well as from the legal relationship between stakeholders in energy development. According to Bradbrook, energy law is ‘the allocation of rights and duties concerning the exploitation of all energy resources between individuals, between individuals and the government, between governments and between States.’376 On the basis of this definition, the role of energy law is to establish and ensure a balance between the different interests of all the parties involved in the generation of energy. The generation of energy has been subject mainly to national level. However, the increasing energy trade based on the growing demand for energy in developed and emerging countries, the impact of energy development on the environment and the inclusion of energy as a sub-category of international environmental law constitute factors which since 1970 have contributed to the growing recognition of the link at an international level between energy and environment.377 Although there is no international agreement that particular governs the extraction of energy sources, with the exception of offshore oil platform operations, several international and regional treaties as well as nonbinding instruments have provided a basis for regulating the effects of oil extraction on the environment. E.g. the 1979 Convention on Long-Range Transboundary Air Pollution is the first multilateral convention that attempts to regulate the environmental consequences of energy generation. This Convention is a major international agreement that governs the emission of substances generating acid rain, precipitations primarily caused by coal burning in power stations.378 By virtue of Article 2 of the Convention, States are called on to ‘protect man and his environment against air pollution’ and to ‘reduce and prevent air pollution including long-range transboundary air pollution’. Ac-

375 Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) vii; Steiner and Hass, ‘The Report of the World Commission on Dams: Some implications for energy’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 140 376 Bradbrook Adrian J, ‘Energy Law as an Academic Discipline’ (1996) 14 Journal Energy and Natural Resources Law 193, 194 377 Lyster and Bradbrook, Energy Law and the Environment (2006) 34 – 35 378 Lyster and Bradbrook, Energy Law and the Environment (2006) 41

Energy in an International Context

113

cordingly, States have to develop instruments to combat the discharges of air pollutants from the exploitation of energy resources.379 Further international treaties that significantly influence decision-making on energy extraction projects are the 1992 UNFCC and the Kyoto Protocol. As explained before, climate change has an adverse impact on the environment which has been exacerbated by, among other causes, the increasing release of GHG emissions into the atmosphere, mostly due to human activities. In fact, the concentrations of carbon dioxide in the atmosphere have grown about 31 percent since 1750 and three quarters of this increase is linked to the use of fossil fuels.380 Therefore, the objective of the Convention is to achieve a stabilization of the GHG concentrations in the atmosphere and hence a reduction of the anthropocentric interference with the climate system to a level that allows ecosystems to adapt naturally to temperature changes.381 Regarding the extraction of energy sources, the 1992 UNFCC demonstrates the adverse effects of the extraction and consumption of fossil fuels, thereby encouraging the promotion of renewable energy sources indirectly. Additionally, the Convention brings forward two relevant commitments related to the exploitation of energy resources, viz. the sustainable management of sinks and reservoirs of greenhouse gases (Article 4 (1) (d)) and the implementation of environmental impact assessments (Article 4 (1) (f)). Both mechanisms aim at the extraction and development of energy resources by reducing GHG emissions. In its Article 1 (1), the 1992 UNFCCC defines ‘adverse effects of climate change’ as ‘changes in the physical environment or biota resulting from climate change which have significant harmful effects on the composition, resilience or productivity of natural and managed ecosystems or on the operation of socioeconomic systems or on human health and welfare.’ On the basis of this definition, biological diversity is also jeopardized by the impact of climate change. Apart from global warming, the extraction of both non-renewable and renewable energy resources exerts additional pressure on ecosystems and living organisms. The 1992 Convention on Biological Diversity (CBD) is an international treaty that must be taken into account when planning and developing projects concerned with the extraction of energy sources. The integration of the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral programs, plans and policies (Article 6) and the establishment of protected areas (Article 8 (a)) constitute additional instruments to protect bi-

379 Convention on Long-Range Transboundary Air Pollution (1979), art 3 380 Lyster and Bradbrook, Energy Law and the Environment (2006) 52 381 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 40; Lyster and Bradbrook, Energy Law and the Environment (2006) 52

114

The Extraction of Natural Resources in the Energy Sector

odiversity from the consequences of an unsustainable exploitation of natural resources. The increasing demand for energy at regional level has become a further concern. Reform processes in the power generating sector, political changes and a growing energy trade have led to the negotiation of a large number of agreements whose objective is the supply of energy at regional level. Bilateral or multilateral agreements related to the interconnection of regional power grids, regional power pools and the construction of gas and pipelines are ample evidence of the international role of energy.382 Some of these regional instruments also include provisions aiming at the protection of the environment from the consequences of energy development and distribution. A good example of a regional agreement is the Energy Charta Treaty. Although the majority of the terms of this treaty are linked to energy investment and trade, it introduces environmental considerations aimed at the sustainable extraction of energy resources. According to its Article 19 (1), States are called ‘to minimize in an economically efficient manner harmful environmental impacts occurring either within or outside its area from all operations within the Energy Cycle383 in its area.’ In addition, this article incorporates principles and mechanisms of international environmental law, such as the precautionary principle or the ‘polluter pays’ principle, and in particular, emphasizes the role of the society in energy decision-making processes (Article 19 (1) (f)). Unfortunately, the treaty gives investment and international trade priority over environmental issues as it states in Article 19 (1) that the polluter in the area of the contracting parties, should, in principle, bear the cost of pollution, including cross-border pollution, with due regard to public interest and without undue detriment to investments in the energy cycle or to international trade. Regarding non-binding instruments, the 1972 Stockholm Declaration constitutes the point of departure for controlling energy generation. Although this international instrument does not allude to energy, it introduces a key principle of international customary law that will have a decisive influence on the development of energy resources. According to Principle 21, States have on the one hand the sovereign power within their jurisdiction to freely dispose and manage their natural resources and to establish the conditions under which extraction may be carried out. On the other hand, it lays down the responsibility of States for ensuring that activities within their jurisdiction or control do not damage the 382 Lyster and Bradbrook, Energy Law and the Environment (2006) 140 383 For purposes of article 19, the Energy Charter Treaty defines energy cycle in article 19 (3) (a. as ‘the entire energy chain, including activities related to prospecting for, exploration, production, conversion, storage, transport, distribution and consumption of the various forms of energy, and the treatment and disposal of wastes, as well as the decommissioning, cessation or closure of these activities, minimizing harmful Environmental Impacts.’

Energy in an International Context

115

environment of other States or of areas beyond their national jurisdiction. Similarly, the 1992 Rio Declaration provides several principles and mechanisms under which energy extraction should be developed, such as the recognition of the sovereign right to exploit natural resources, the ‘no harm’ principle, intergenerational equity, the precautionary principle, the ‘polluter pays’ principle and the requirement to carry out environmental impact assessments. Moreover, in its preamble this international declaration has set as a goal the establishment of ‘a new and equitable global partnership through the creation of new levels of co-operation among States, key sectors of societies and people’ and the creation of ‘international agreements which respect the interests of all and protect the integrity of the global environmental and development system’. An additional international document dealing with sustainable development is Agenda 21. Although it does not make any reference to energy, it clearly links the protection of the atmosphere with energy concerns.384 Indeed, Agenda 21 points out in Chapter 9 that the energy sector can contribute to the protection of the atmosphere by improving the scientific basis of decision-making385 and by promoting sustainable development through energy development, and through efficiency and consumption, transportation, terrestrial and marine resources and land use.386 In addition to these declarations, the Johannesburg Plan of Implementation, the outcome of the World Summit on Sustainable Development (WSSD), is the first instrument to identify energy as a core aspect for achieving the Millennium Development Goals.387 The Plan recognizes the contribution of energy to sustainable development and to the generation of other important services to allay poverty. The Plan proposes several measures to encourage sustainable extraction and the management of natural resources, such as the provision of financial resources, technology transfer, capacity building and the application of modern technologies.388 Moreover, one of the actions proposed in the Plan among others is the generation of renewable energy sources such as biofuels.389 In this connection, another action stems from the Gleneagles G8 meeting in 2005. This instrument focuses its attention on energy efficiency and the development of cleaner energy as a way to allow access by the poor to modern power384 385 386 387

Lyster and Bradbrook, Energy Law and the Environment (2006) 67 Agenda 21, Ch 9 (5) (a) Agenda 21, Ch 9 (5) (b) Johannesburg Declaration on Sustainable Development (2002), Par. 2; Bradbrook and Wahnschafft, ‘The contribution of international law to achieving global sustainable energy production and consumption’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 153 388 Johannesburg Declaration on Sustainable Development (2002), Par. 20 (a) 389 Johannesburg Declaration on Sustainable Development (2002), Par. 9 (b)

116

The Extraction of Natural Resources in the Energy Sector

based services.390 All these binding and non-binding international agreements mentioned above lay the foundations for the sustainable development of energy resources by governing the relations between States.391 b.

Regulation of Non-Renewable Energy

Energy law regulates at a national level the different areas arising out of the legal relationship between states and individuals as relevant to oil, gas and coal exploitation. One of these areas is environmental regulation. In the light of this area, States must provide a legal mechanism to ensure that extraction complies with environmental standards.392 In the first half of the 20th century, the development and adoption of laws and regulations aiming at a sustainable exploitation of oil and gas focused on the prevention of underground waste through well spacing and permit requirements, no-flare orders, as well as of pooling and unitization statutes to prevent competitive drilling and production. In the recent decades, this body of conservation laws has been complemented with further measures, mechanisms and tools that ensure the conservation of the environment. One of these measures, for example, is including the depletion of natural resources into national income accounting by deducting the value of produced and consumed resources from a nation’s GDP.393 Despite the objective of energy law to reduce the environmental and social impact from oil and gas extraction, the modalities of how environmental provisions govern the activities of the oil and gas industries in national law, differ considerably from one legislation to another. The doctrine has identified three approaches which describe the different modalities to rule environmental issues in the energy sector at national level. The first is the so-called statutory approach. This approach characterizes an environmental legal framework composed by multiple detailed command and control statutes which broadly govern the activities of any type of industry. Consequently, environmental provisions relating to oil and gas operation are not contained in a unified legislation. This, in turn, gives rise to a confusing and uncoordinated body of law administrated by different agencies. Typical models 390 G8 Gleneagles 2005 Plan of action, Par. 10 391 Gao, ‘Environmental Regulation of Oil and Gas in the Twentieth Century and Beyond: An introduction and Overview’ in Gao, Environmental Regulation of Oil and Gas (1998) 24 – 25; Lyster and Bradbrook, Energy Law and the Environment (2006) 66 – 67 392 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 51 – 52; Lyster and Bradbrook, Energy Law and the Environment (2006) 32 393 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 51 – 52; Lyster and Bradbrook, Energy Law and the Environment (2006) 51 – 52

Energy in an International Context

117

of this statutory approach are the USA and Great Britain.394 By contrast, under the integrated legislative approach, environmental aspects of the oil and gas sector are governed by specific environmental norms contained in framework legislation for oil and gas operations. Furthermore, this approach includes prevention and control measures, such as the requirement of carrying out environmental impact assessments, as well as an enforcement mechanism against domestic or foreign oil and gas companies to deal with environmental damage.395 Finally, environmental obligations imposed on the operations of the oil and gas industries may also be subject to private law through binding agreements, such as oil contracts and codes of conduct. This is the so-called contractual approach. Most of the time, the extraction of fossil fuels takes place in developing countries which either have an underdeveloped energy and environmental regulatory framework or, where such legislation does exist, these countries lack adequate enforcement mechanisms or institutions to implement the law. This absence of the rule of law coupled with armed conflicts and monopolist control over the development of gas and oil by state-owned companies lead to an unsustainable extraction of fossil fuels that can cause environmental damage and the violation of human rights.396 Given the inadequate and slow development of environmental legislation in the energy sector, many producing countries even today prefer contractual agreements with environment control clauses.397 As pointed out above, traditionally the generation of energy from fossil fuels has been subject to national legislation on the basis of the sovereignty over natural resources.398 However, since 1970, the regulation of fossil fuel extraction and transportation has become an international concern not only due to the strategic role of fossil fuels in the economic development of nations but also because of the rising number of environmental disasters caused by their production and shipping. In fact, the environmental impact derived from oil spills and leaks on the high seas gave way to a set of ‘hard law’ instruments which aim 394 Gao, ‘Environmental Regulation of Oil and Gas in the Twentieth Century and Beyond: An introduction and Overview’ in Gao, Environmental Regulation of Oil and Gas (1998) 32; Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 61 395 Gao, ‘Environmental Regulation of Oil and Gas in the Twentieth Century and Beyond: An introduction and Overview’ in Gao, Environmental Regulation of Oil and Gas (1998) 37; Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 61 – 62 396 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 61 397 Gao, ‘Environmental Regulation of Oil and Gas in the Twentieth Century and Beyond: An introduction and Overview’ in Gao, Environmental Regulation of Oil and Gas (1998) 35 398 Lyster and Bradbrook, Energy Law and the Environment (2006) 35 – 36

118

The Extraction of Natural Resources in the Energy Sector

to control pollution and waste produced by offshore oil and gas operations and shipping. Key international treaties are the 1958 Geneva Conventions, the 1972 London Dumping Convention and the 1973/78 MARPOL Convention and the 1982 Law of the Seas Convention. All these agreements aim at the protection of the marine environment from pollution generated during oil drilling and shipping. However, the primary source of oil pollution is onshore oil drilling. Unfortunately, few hard law instruments are being developed that regulate the environmental impact caused by onshore facilities since most of them occur within national borders. Consequently, ecosystems protection and pollution control are mostly regulated by national law.399 ‘Soft law’ instruments also contribute to the regulation of environmental issues in the oil and gas sector. These non-binding legal instruments encompass environmental principles and goals as well as setting voluntary standards. The main advantage, derived from their non-binding character, is that they can encourage the development of instruments and mechanisms to protect the environment from the impact of oil and gas exploitation. On the other hand, they are still inadequate and weak at the time of their implementation. An important soft law instruments for the oil and gas sector is the 1992 Rio Declaration, Agenda 21 and the guidelines and standards developed by international organizations, such as UNEP Guidelines on environmental assessment, the International Maritime Organization Guidelines on the removal of offshore structures, the directives issued by the World Bank requiring EIAs for offshore oil and gas projects and measures to reduce environmental damage, international technical standards (ISO 14000), industry guidelines adopted by industry and trade associations such as the joint IUCN/E& P Forum guidelines and the International Chamber of Commerce’s Business Charter for Sustainable Development.400

c.

Regulation of Renewable Energy

The regulation of the generation of renewable energy attempts to determine ownership of the energy sources for production, to establish an adequate in399 Gao, ‘Environmental Regulation of Oil and Gas in the Twentieth Century and Beyond: An introduction and Overview’ in Gao, Environmental Regulation of Oil and Gas (1998) 13 – 16 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 61; Lyster and Bradbrook, Energy Law and the Environment (2006) 32 – 33 400 Gao, ‘Environmental Regulation of Oil and Gas in the Twentieth Century and Beyond: An introduction and Overview’ in Gao, Environmental Regulation of Oil and Gas (1998) 23 – 29; Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 60 – 61

Energy in an International Context

119

vestment environment, to remove the barriers that restrain its development, and finally to lay down environmental standards to protect the environment. Environmental regulation recognizes that biodiversity, the availability and quality of natural resources, and the quality of the environment can be jeopardized by the unsustainable production of renewable energy. Therefore, both renewable energy law and contractual agreements between States and investors provide standards, institutions and mechanisms to reduce the impact on the environment and on people’s lives. In the last three decades, the regulation of renewable energy has crossed national borders and become an international issue. In effect, the generation of renewable energy plays an important role in the achievement of sustainable development since renewable energy is being perceived as a way to ensure energy supply and economic growth next to being an effective measure to combat the effects of global warming. Several international instruments have accentuated the link between energy production, climate change and sustainable development. The 1992 Rio Declaration and Agenda 21 of the 1992 United Nations Framework Convention on Climate Change (UNFCC), the 2002 World Summit on Sustainable Development (WSSD) and the 2003 G8 Gleneagles Summit constitute the platform for the development of renewable energy. Although the 1992 Rio Declaration does not allude directly to energy, the principles anchored in this Declaration have set the parameters for sustainable development in the energy sector.401 Two international instruments that decisively prompted the promotion of renewable energy as a response to the effects of climate change are the 1992 UNFCC and the Kyoto Protocol. Both instruments aim at reducing GHG emissions released by fossil fuels. This goal can be achieved, among other measures, by a cost-effective energy fuel mix giving a greater share to renewable energies.402 Finally, the Johannesburg Plan of Implementation agreed at the 2002 WSSD constitutes the first international instrument towards the development of a global sustainable energy framework which envisages energy efficiency and renewable energy as a mechanism to achieve sustainable development goals.403 On this basis, international environmental agreements have encouraged the generation of renewable energy as a viable option not only to combat the effects of global warming, but also to reduce the dependence on fossil fuels imports. 401 Lyster and Bradbrook, Energy Law and the Environment (2006) 34 402 Commission of Sustainable Development, ‘Report on the Ninth session’ E/CN.17/2001/19 (2001), ch I, art 4; Lyster and Bradbrook, Energy Law and the Environment (2006) 34, 77 403 Bradbrook and Wahnschafft, ‘The contribution of international law to achieving global sustainable energy production and consumption’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 153; Lyster and Bradbrook, Energy Law and the Environment (2006) 34

120

III.

The Extraction of Natural Resources in the Energy Sector

Conclusion

Natural resources are goods provided by the environment and constitute an important foundation for human survival and development. For their use in the economy, they follow a life cycle which begins with the input of resources in the production cycle and ends as waste or as output of GHG emissions. Throughout this life cycle several negative effects on the environment occur. Regarding the first phase of this life cycle, the extraction of natural resources relates to a process which allows obtaining material or services from the environment. Although the extraction of natural resources is essential for human survival, extraction has a negative effect on the availability of natural resource stocks and on the quality of the environment. To avoid or lessen such impact, several measures have been undertaken at international level. One of these is regulating the extraction of resources. The extraction of natural resources has mostly been governed by national legislation. However, extraction activities have been also guided by international environmental law principles such as permanent sovereignty over natural resources, the responsibility of states to ensure that activities within their jurisdiction or control do not damage the environment of other States, common but differentiated responsibilities, the precautionary principle and the intergenerational equity principle. In addition, instruments of international environmental law have addressed the impact of natural resource extraction and developed measures and mechanisms to prevent, mitigate or reduce such impact, like e. g. environmental impact assessments, sustainable management of natural resources and the participation of the community in the decisionmaking process concerning the extraction of natural resources. The focus of this investigation is on the extraction of energy resources. Resources necessary for energy generation are mainly raw materials, whether renewable or non-renewable, as well as environmental media like soil or water. Although energy is a key precondition for the achievement of social and economic and environmental goals, energy generation has given rise to many negative consequences. Global drivers, such as population growth, economic development and patterns of consumption and production, have pushed up the global demand for energy so as to jeopardize the availability of and accessibility to energy resources as well as environmental quality. To secure access to energy, efficient and environmental-friendly energy generation, which reduces environmental degradation and the effects of global warming, must be guaranteed. In this context, the exploitation of energy resources plays a crucial role. The extraction of energy resources has been defined as a method of turning energy sources to productive and profitable uses. This Section addresses the extraction processes of raw material and the use of environmental media for the

Conclusion

121

generation of both non-renewable (fossil fuels) and renewable (hydroelectric power and biomass) energy as well as the consequences of this activity on the environment and on man. For instance, the extraction of fossil fuels has given rise to high concentrations of GHG in the atmosphere which, in turn, causes changes in temperature and precipitation. Similarly, large-scale hydroelectric projects have brought significant externalities to bear on the environment. Indeed, the inundation of reservoir areas and the modification of river flows have led to water stress, competing uses of water resources and the violation of human rights. These examples clearly show that the extraction of energy resources can significantly affect both the environment and the availability of resources, thereby affecting human development and survival. Regarding the regulation of the energy extraction, property law constitutes a main point for the governance of energy and natural resources. Ownership includes several rights but also duties whose purpose is to factually and legally define the powers that owners exercise over something. The nature and scope of these rights and duties are established by national legislation on the basis of the principle of permanent sovereignty over natural resources. According to this principle, peoples and nations have the right to freely use and exploit their natural resources. However, the exercise of sovereignty is not absolute. The use and exploitation of natural resources needs to be carried out under the premises of the interest of national development and the well-being of the people. In addition to this principle, two factors are taken into account by legislators at the moment of ruling on ownership, viz. the strategic value of a resource for the economic development of the country and the level of control that the State is willing to exercise by virtue of its right to permanent sovereignty over the natural resources. The increasing energy trade, the impact of energy generation on the environment, and the inclusion of energy as a sub-category of international environmental law have contributed to creating a link between energy and environment in binding and non-binding international agreements. A crucial area regulated by energy law is the environmental impact of extraction activities. With regard to the extraction of fossil fuels, States have enacted at national level laws and regulation containing environmental standards, measures, mechanisms and tools aiming a sustainable exploitation. Due to the strategic role of fossil fuels to economic development and the increasing number of environmental disasters caused by energy generation and transportation, hard law instruments have been adopted at international level with a view to control pollution and waste produced in particular by offshore oil and gas operations and shipping. Additionally, ‘soft law’ instruments constitute important foundations for the regulation of environmental issues in the oil and gas sector. Unfortunately, they are insufficient and weak at the time of their implementation.

122

The Extraction of Natural Resources in the Energy Sector

Regarding the regulation of renewable energy resources, both energy law and contractual agreements between States and investors provide norms, institutions and mechanism to prevent an adverse impact on environment and people’s lives. This analysis shows on the one hand the crucial role of energy resources in economic and social development. On the other hand, it demonstrates that extraction activities have a devastating impact on the environment which, in turn, affects human survival and development. These negative consequences on the environment have been ruled in domestic legislation and international law. However, these efforts are still insufficient. In the light of this background, the next and most important Section of this study will illustrate the link between human rights and environmental conservation by dealing with the implications of environmental impact that the extraction of non-renewable and renewable energy resources has on the exercise of human rights, on the basis of international human rights case law.

D.

The Link Between Human Rights and the Environment

The present Chapter will answer the main question of this Study. This question is whether it is possible to establish a link between the realization of human rights and environmental conservation in the context of the extraction of energy resources. To address this question, substantive human rights will be analyzed in a first stage: the right to life, the right to property, the right to respect for private life, family and home, the right to an adequate standard of living, the right to health and the right to water. In a second stage, procedural rights – the right to participation, the right of access to justice and the obligation to carry out Environmental Impact Assessments (EIAs) – will be addressed. First, the definition and scope of these rights will be clarified. Then, the link between the realization of these rights and conservation will be explained on the basis of international human rights and environmental agreements as well as on the basis of case law of regional human rights courts. Finally, the consequences of energy resource extraction on each right will be illustrated looking at a specific case. In a third and final stage, the corporate responsibility and accountability of Transnational Corporations (TNCs) for environmental impacts and violations of human rights will be analysed on the basis of the litigation between Texaco Oil – Chevron and Ecuadorian citizens.

I.

Substantive Rights

The first international instrument which expressed concern of the international community with regard to the consequences of environmental impact on the enjoyment of fundamental rights was the 1968 Resolution of the 2398 (XIII) of United Nations General Assembly (UNGA). Subsequently, the 1972 Stockholm Declaration404 and UNGA Resolution 45/94405 established a link between envi404 Principle 1 of the Stockholm Declaration states: ‘Man has the fundamental right to freedom,

124

The Link Between Human Rights and the Environment

ronmental protection and the realization of human rights, thereby recognizing the entitlement of everyone to live in an environment adequate for their lives and well-being.406 According to Shelton, this link can be viewed from three different approaches. The first right-based approach considers environmental protection as a pre-condition for the enjoyment of human rights. The second right-based approach views human rights as an essential condition to achieve environmental protection. Since 1992, several environmental agreements have adopted this instrumentalist approach. For instance, Principle 10 of the Rio Declaration establishes the link of human rights and environmental protection on the basis of procedural rights such as the right to access to information, public participation in decision-making processes and effective access to judicial and administrative proceedings. Finally, the third and most resent approach proposes the right to a safe and healthy environment as an independent substantive human right. This right gives environment the status of a legal value which must be protected.407 This approach has been anchored in regional human rights treaties such as in the 1981 African Charter on Human and Peoples Rights or in San Salvador Protocol as well as in national law.408 In the light of the first approach, the realization of a number of human rights depends doubtlessly on the physical environment.409 Linking human rights and the environment has been called by some authors the ‘greening’ of human rights. This means that existing human rights guarantees address the failures of States to take adequate measures to avoid or control known sources of environmental pollution caused by either private or State action.410 The advantage of protecting the environment using a human rights protection system is that the impact of uncontrolled environmental harm on human beings can be addressed by regional human rights courts.411 Indeed, a growing body of jurisprudence has

405 406 407 408 409 410 411

equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, (…)’ UNGA, Problems of the human environment (Res. 2398 (XXIII), 1968), Par. 1 states: ‘[…] all individuals are entitled to live in an environment adequate for their health and well-being; […]’ Shelton Dinah, ‘ Human Rights, Health & Environmental Protection: Linkages in Law & Practices’: A Background Paper for the World Health Organization’ (Health and Human Rights Working Paper Series No.1, 2002) 3 Birnie and others, International law & Environment (2009) 272 Shelton Dinah, ‘ Human Rights, Health & Environmental Protection: Linkages in Law & Practices’: A Background Paper for the World Health Organization’ (Health and Human Rights Working Paper Series No.1, 2002) 3 – 4 Inter-American Commission on Human Rights, ‘Report on the Situation of Human Rights in Ecuador’ OEA/Ser.L/V/II.96 (1997), ch VIII; Kravchenko, ‘Environment’ in Encyclopedia of Human Rights II (2009) 141 Birnie and others, International law & Environment (2009) 283 – 284 Beyerlin Ulrich, ‘Umwelschutz und Menschenrechte’ (2005) vol 65 Zeitschrift für aus-

Substantive Rights

125

strengthened the ‘greening’ of human rights.412 For example, the Inter-American Commission and Court of Human Rights have linked the protection from environmental harm and unsustainable development with the rights to life, health and property while the European Human Rights Court has interrelated the right to information with the right to privacy and family life.413 Although the right to a healthy environment is recognized in Africa, claims linked to environmental harm has been mainly based on the right to health. Ecological rights include substantive and procedural rights.414 Substantive rights which will be analysed in this investigation in order to evidence the link between human rights and the environment, are the right to life, the right to property, the right to respect for private life and family and home, the right to an adequate standard of living, the right to health and the right to water.

1.

The Right to Life

a.

Legal Foundations

The right to life has been considered a supreme human right. The Human Rights Committee and the European Court on Human Rights placed this right in the first position of the hierarchy of human rights guarantees since its enjoyment is strongly linked to the effective realization of other human rights.415 Moreover, the Inter-American Court of Human Rights has corroborated in its case law the crucial role of the right to life in guaranteeing the full enjoyment of other human rights.416 In accordance with the ICCPR, the European Convention on Human Rights and the American Convention on Human Rights, fundamental rights

412 413

414 415 416

ländisches öffentliches Recht und Völkerrecht 525 – 542, 534, 540; Birnie and others, International law & Environment (2009) 272 Birnie and others, International law & Environment (2009) 274 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Par. 51; European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Par. 60; European Court of Human Rights, McGinley and Egan vs The United Kingdom App no 10/1997/794/995 – 996 (1998), Par. 97; European Court of Human Rights, Taskin and others vs Turkey App no 46117/99 (2004), Par. 119; Birnie and others, International law & Environment (2009) 274 Ludescher, Menschenrechte und indigene Völker (2004) 253 HRC, General Comment No. 6, The right to life (Art.6) (1982), Par. 1; Nowak, CCPR Commentary (2005) 121 (1); Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 307; Schilling, Internationaler Menschenrechtsschutz (2010) 50 (115) Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 161; Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Community vs Paraguay (2006) Serie C no 146, Par. 150 HRC, General Comment No. 6, The right to life (Art.6) (1982), Par. 1; Nowak, CCPR Commentary (2005) 121 (1); Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 307; Schilling, Internationaler Menschenrechtsschutz (2010) 50 (115)

126

The Link Between Human Rights and the Environment

whose essence is irreducible, are: the right to life; the right to freedom from torture and other cruel, inhuman and degrading treatment or punishment; the right to freedom from slavery ; and the prohibition of retroactive application of criminal law.417 Due to the significance and the irreducibility of the core nature of these rights, their derogation is not allowed even in time of public emergency when the existence of a nation is jeopardized.418 Despite of the non-derogable character of the right to life, international human rights instruments have established certain exceptions to the prohibition of deprivation of life. With respect to the admissibility of interference with the right to life, the ICCPR and the American Convention on Human Rights differ structurally from the European Convention on Human Rights. The prohibition of arbitrary deprivation of life is embodied in Article 6 (1) of the ICCPR and Article 4 (1) of the American Convention on Human Rights. Neither international provision contains a list of exceptions when the deprivation of life is justified. The single exception expressly determined in Article 6 (2) of the ICCPR and in Article 4 (2) of the American Convention on Human Rights is the death penalty with the provision that this measure is imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and is not contrary to the provisions of international human rights instruments. Given the lack of an exhaustive list of exceptions, the term ‘arbitrary deprivation of life’ should be interpreted and examined in the light of the concrete circumstances of each case and the adequacy of the actions undertaken by the State’s bodies in a given case.419 By contrast, the protection of the right to life anchored in Article 2 (1) of the European Convention on Human Rights is based on the prohibition of intentional deprivation of life rather than arbitrary deprivation. One of the most fundamental provisions in the European Convention is given in Paragraph 2 of Article 2 since it establishes three specific cases in which interference with the right to life is allowed.420 The first exception relates to the deprivation of life as a result of the use of force in the defence by any person from unlawful violence. The so-called “final shot fired to save lives” is allowed as a last resort in cases of self-defence or emergency assistance where an imminent lethal attack must be repelled.421 A further justification of interference with the right to life is the 417 Art. 4 (1) ICCPR; Art. 15 (2) European Convention on Human Rights; Art. 27 (2) American Convention on Human Rights 418 General Comment No. 6, The right to life (Art.6) (1982), Par. 1 419 HRC, Suarez de Guerrero vs Colombia (1982) no 45/1979, Par. 13.2; HRC, Baboeram et al vs Suriname (1984) no 146/1983 and 148 to 154/1983, Par. 13.1; Schilling, Internationaler Menschenrechtsschutz (2010) 56 (131) 420 European Court of Human Rights, McCann and others vs The United Kingdom App no 18984/91 (1995), Par. 174 421 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 307, 309 – 310; Schilling, Internationaler Menschenrechtsschutz (2010) 57 (132)

Substantive Rights

127

deprivation of life in the case of a lawful arrest or to prevent the escape of a person who is lawfully detained. Finally, Article 2 (2) allows the deprivation of life in cases of armed conflicts within the limits of the humanitarian international law as well as in cases where actions are lawfully taken with the aim of quelling a riot or insurrection.422 Due to the fundamental interest protected under the right to life, judicial scrutiny is particular important to strictly control the necessity of such intervention. Therefore, the European Court of Human Rights does not only prove the action of states bodies but also all other circumstances under which the deprivation of life took place. Examples of such circumstances are the legal framework or the planning and control of the intervention.423 Like other human rights, the right to life imposes upon States positive and negative obligations. According to the wording of Article 6 (1) of the ICCPR, Article 4 (1) of the American Convention on Human Rights and Article 2 (1) of the European Convention on Human Rights, States have on the one hand the negative duty to prohibit the arbitrary or intentional deprivation of life by State bodies or third parties. On the other hand, these articles impose on the State by the law the duty to positive protection of the right to life. b.

The Prohibition of Arbitrary Deprivation of Human Life in Relation to the Development of Dangerous Activities

States have the negative duty to refrain from any arbitrary or intentional deprivation of life. As explained before, Article 6 (1) of the ICCPR as well as Article 4 (1) of the American Convention on Human Rights prohibit the arbitrary deprivation of human life. By contrast, the European Convention on Human Rights refers to a prohibition of the intentional deprivation of life and incorporates a list of exceptions.424 Despite the structural differences in these provisions, the prohibition of arbitrary or intentional deprivation of life by State bodies or third parties has two common components. The first component refers to the fact that the use of force resulting in the deprivation of life is justified not only when it is absolutely necessary and strictly proportionate to the achievement of a legitimate aim but also when it is subject to careful scrutiny by national and international courts, particularly in cases where deliberate lethal force was applied.425 According to the European Court of Human Rights, the term ‘absolutely necessary in Article 2 (2) of the European Convention on Human Rights clearly 422 423 424 425

Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 307 Schilling, Internationaler Menschenrechtsschutz (2010) 50 (115) Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 308 – 309 European Court of Human Rights, McCann and others vs The United Kingdom App no 18984/91 (1995), Par. 150

128

The Link Between Human Rights and the Environment

pursues a stricter and more compelling test of necessity than the tests normally applied when determining whether a State action is ”necessary in a democratic society” as per Paragraph 2 of Article 8 to Article 11.426 Furthermore, the use of force must be proportionate to the requirements regarding law enforcement in the given circumstances.427 According to the Inter-American Commission of Human Rights, the legitimate use of force implies that it should be both necessary and proportionate to the situation. In other words, the use of force needs to be exercised in moderation and in proportion to the legitimate objective sought and in an effort to reduce to a minimum any personal injury and loss of human lives.428 With respect to the requirement of a ‘careful scrutiny’, this should take into consideration not only the actions of the agents of the State who administer the force but also all the surrounding circumstances including issues related to the planning and control of the actions subject to examination.429 Consequently, the prohibition of arbitrary deprivation of life is to be understood as the obligation of the State not to take the life in unreasonable or disproportionate circumstances. The second component is the protection of the right to life by law. In this point, the prohibition of arbitrary deprivation of life implies both a legislative as well as a procedural obligation to protect life. Relating to the legislative obligation to protect life, States are called on to enact laws that strictly control and limit the circumstances under which a person can be deprived of life by State authorities since such deprivation is, as per General Comment No. 6, a matter of extreme gravity.430 Accordingly, States have the primary obligation to protect the right to life by setting limits to the use of force in their legislation. In order to ensure that the laws ruling the deprivation of life by State authorities are lawful and non-arbitrary, States have a limited margin of discretion to rule on the deprivation of live by State forces.431 This means that their legislative power in relation to this particular matter is subordinate to international instruments 426 European Court of Human Rights, McCann and others vs The United Kingdom App no 18984/91 (1995), Par. 149; European Court of Human Rights, Ramsahai and others vs The Netherlands App no 52391/99 (2007), Par. 287 427 HRC, Suarez de Guerrero vs Colombia (1982) no 45/1979, Par. 13.3 428 Inter-American Commission of Human Rights, The Human Rights Defense Center of Porto Velho Archdiocese vs Brazil (2004) Case 11556, Report no 32/04, Pars. 171, 174 429 European Court of Human Rights, McCann and others vs The United Kingdom App no 18984/91 (1995), Par. 150; Inter-American Court of Human Rights, The ‘Street Children’ (Villagr‚n Morales and others) vs Guatemala (1999) Serie C no 63, Par. 145 430 HRC, Suarez de Guerrero vs Colombia (1982) no 45/1979, Par. 13.1; General Comment No. 6, The right to life (Art.6) (1982), Par. 3 431 Joseph and others, The International Covenant on Civil and Political Rights (2004) 157 (8.06); Ludescher, Menschenrechte und indigene Völker (2004) 103; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 310; Schilling, Internationaler Menschenrechtsschutz (2010) 51 (118)

Substantive Rights

129

regarding the deprivation of life such as ‘The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’ established by the United Nations. Since States are called on to protect individuals from deprivation of life not only by state bodies but also by third parties, the legislative duty imposed upon States also embodies the obligation to enact effective criminal law provisions to deter the commission of offences against the person and to prosecute those responsible for unlawful deprivation life.432 Furthermore, in cases where individual’s life is at risk from criminal acts perpetrated by other individual, State authorities have the positive obligation to take preventive operational measures in cases where States authorities knew or ought to have known the existence of a real and immediate threat to the individual’s life from criminal acts of a third party.433 The prohibition to arbitrary deprivation of life also implies a procedural obligation. Regarding procedural duties, States have the international obligation to prevent, investigate and penalize the arbitrary deprivation of life by State authorities as well as by third parties.434 This means that States are called on to ensure an adequate and promptly response in cases of loss of lives which could potentially engage the responsibility of the State, by bringing into motion the legislative and administrative framework set up for this purpose.435 On this basis, State have to establish an effective, impartial and independent judicial system which effectively conducts official criminal investigations of unexplained deaths in an open and transparent way ; punishes those materially or intellectually responsible for a crime; and provides appropriate civil, administrative or even disciplinary remedies to the victims or their families.436 In this respect, it must be noted that this procedural obligation emanating from Article 7 of the ICCPR is autonomous in regard to the material obligation to protect the right to life contained in Article 6 (1) of the ICCPR.437 In addition, States have the positive duty to coach relevant personal in order to prevent or minimize the violation of the right to life and personal security. This can be regulated through provisions 432 HRC, Suarez de Guerrero vs Colombia (1982) no 45/1979, Par. 13.3; European Court of Human Rights, Mastromatteo vs Italy App no 37703/97 (2002), Par. 67; Schilling, Internationaler Menschenrechtsschutz (2010) 52 (119) 433 European Court of Human Rights, Akkoc vs Turkey Apps nos 22947/93 and 22948/93 (2000), para; European Court of Human Rights, Mastromatteo vs Italy App no 37703/97 (2002), Par. 67; Smith, International Human Rights (2012) 219 434 General Comment No. 6, The right to life (Art.6) (1982), Par. 3 435 European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 91 436 HRC, Baboeram et al vs Suriname (1984) no 146/1983 and 148 to 154/1983, Par. 16; HRC, Bautista de Arellana vs Colombia (1996) no 563/1993, Pars. 10, 13; Inter-American Commission of Human Rights, The Human Rights Defense Center of Porto Velho Archdiocese vs Brazil (2004) Case 11556, Report no 32/04, Par. 175 – 177; Schilling, Internationaler Menschenrechtsschutz (2010) 52 (121); Smith, International Human Rights (2012) 219 437 HRC, Sankara et al. vs Burkina Faso (2006) no 1159/2003, Par. 12.2; Schilling, Internationaler Menschenrechtsschutz (2010) 60 (139)

130

The Link Between Human Rights and the Environment

relating to the appropriate use of firearms. On this point, the Human Rights Committee stressed the importance of regulating the use of firearms by police to prevent violations of the right to life and personal security.438 An additional positive obligation relates to the protection of detainees. By arresting or detaining individuals, States automatically assume the responsibility to care for their lives. As a result, States have the duty to take adequate measures to prevent detainees becoming the victims of violent death while in the custody of the State.439 A direct consequence resulting from dangerous activities can be the loss of life. In the context of such activities, State authorities can be held criminally liable for the loss of lives when authorities on the one side had or ought to have had sufficient knowledge to identify and establish the causes of an incident resulting in the death of an individual and when on the other hand they failed to take appropriate measures to prevent such event.440 Similarly, State authorities can be charged with a criminal offence or prosecuted in cases where the loss of lives is a consequence of negligence attributable to States officials and bodies beyond an error of judgement of careless.441 In this respect, the domestic judicial system is required to provide an independent and impartial official investigation based on minimum standards which allows determining the circumstances in which the incident occurred and any shortcomings in the operation of the regulatory system as well as to identify the State’s officials or authorities involved in the chain of the events and the subsequent incident.442 In addition, the extraction of energy resources can involve a direct violation of the right to life when State security forces and the private actors terrorized and killed individuals who were opposed to extraction activities. In the case of the Ogoni, the African Commission of Human Rights held the governments of Nigeria accountable for the death of members of the Ogoni community since security forces were allowed to commit acts of violence against this peoples.443

438 Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: Romania.’ CCPR/C/79/Add.111 (1999) Par. 12 439 HRC, Lanstov vs Russian Federation (2002) no 763/1997, Par. 9.2; Joseph and others, The International Covenant on Civil and Political Rights (2004) 182 (8.40) 440 European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 92 441 European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 93 442 European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 93, 94 443 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 67

Substantive Rights

c.

131

The Duty to Protect Life by Law and its Role in the Extraction of Natural Resources

States have a positive obligation to protect the right to life of every person in its jurisdiction.444 In other words, States are called on to adopt all appropriate measures to protect and preserve the right to life in order to secure the fulfilment and free enjoyment of other human rights.445 Apart from the positive obligation of the State regarding the prohibition of deprivation of life by State authorities or third parties, States have two additional positive obligations. The first is related to the duty of the State to create minimum living conditions compatible with the dignity of the human person while the second refers to the duty to take all positive measures to safeguard individuals’ lives from risks from the conduct of a third party, natural hazards or hazardous activities.446 Furthermore, States have the obligation to protect particularly the life of vulnerable groups from environmental degradation arising from dangerous development activities such as natural resource extraction. These three obligations will be analyzed below. The fundamental right to life includes the right of individuals to have access to conditions that guarantee a dignified existence.447 In this regard, the Human Rights Committe, in its General Comment No. 6, extended the scope of the protection of the right to life by situations such as malnutrition, epidemics and armed conflicts, threat the life of individuals.448 Although malnutrition, homelessness and deficient health care systems constitute risks to human existence, the combat against these deficiencies depends primarily on the economic capacity and political will of the States. Bearing in mind these political and economic factors, the HRC stressed in its General Comment the desirability for State parties to take all possible measures to reduce such problems. The intentional use of the term ‘desirable’ by the Committee makes clear the point that socio-

444 HRC, Jimenez Vaca vs Colombia (2002) no 859/1999, Par. 7.3 445 Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Community vs Paraguay (2006) Serie C no 146, Par. 152 446 European Court of Human Rights, Osman vs The United Kingdom App no 87/1997/871/1083 (1998), Par. 115; European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Pars. 71 and 90; Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 162; Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Community vs Paraguay (2006) Serie C no 146, Par. 151; European Court of Human Rights, Budayeva and others vs Russia Apps nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 (2008), Par. 129 – 130; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 326 447 Inter-American Court of Human Rights, The ‘Street Children’ (Villagr‚n Morales and others) vs Guatemala (1999) Serie C no 63, Par. 144 448 General Comment No. 6, The right to life (Art.6) (1982), Par. 5; Shelton, ‘A Right-based Approach to Conservation’ in Greiber (ed), Conservation with Justice: A Right-based Approach (2009) 15

132

The Link Between Human Rights and the Environment

economic aspects of the right to life embody exclusively a moral obligation and not a legal one.449 As a result of this argumentation, important aspects of human existence are protected under the umbrella of other subsistence rights such as the right to food, housing and health, rather than of the right to life. On this point, it should be noted that the fulfilment of those subsistence rights is strongly linked to the wide margin of discretion that States have; nevertheless, it must also not be overlooked that the protective effect of such rights imposes upon States the duty to ensure physical survival as well as to guarantee an adequate living standard and human health.450 In the particular context of the protection of physical survival, the death of a person, directly resulting from the prohibition of State authorities to give access to health care or nourishment, constitutes an arbitrary breach of the right to life. Evidence of this can be found in case of Mulezi. The Human Rights Committee held responsible the Democratic Republic of Congo for the death of the author’s wife since its military forces refused her request to travel to another city to receive medical attention.451 Consequently, the access to subsistence rights such as the right to health, is a substantial component of the protection of the right to life. Apart from this, States also have the positive obligation to take all positive measures to safeguard individuals’ lives from risks from the conduct of a third party, natural hazards, hazardous products or activities. The scope and limits of the duty of the State to take positive measures to protect the right to life from the interference by third parties were developed by the European Court of Human Rights in the case of Osman vs United Kingdom. In a first approach to the content of this duty, the European Court made clear that this obligation is not absolute since States on the one hand have limited resources to adopt preventive actions and on the other hand they are not allowed to exercise an extensive control over the private sphere of an individual.452 Bearing in mind these difficulties, the European Court asserted that this positive obligation had not to be interpreted in a way that imposes an impossible and disproportionate burden on authorities.453 Following this argumentation supported by the Court, the legislative authority is vested with a wide margin of discretion in the fulfilment of this obligation.454 Nevertheless, the European Court also established in its case law concrete requirements to set limits to this discre449 450 451 452 453

General Comment No. 6, The right to life (Art.6) (1982), Par. 5 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 307 – 308 HRC, Mulezi vs Democratic Republic of the Congo (2004) no 962/2001, Par. 5.4 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 125 European Court of Human Rights, Mastromatteo vs Italy App no 37703/97 (2002), Par. 68; European Court of Human Rights, Gongadze vs Ukraine App no 34056/02 (2006), Par. 165; Schilling, Internationaler Menschenrechtsschutz (2010) 58 (136) 454 Nowak, CCPR Commentary (2005) 123 (4)

Substantive Rights

133

tionary power. Accordingly, authorities can only be held liable for not taking those operational measures to prevent the materialization of a risk to life firstly when such authorities knew or ought to have known about a real and immediate threat to the life of a person from the criminal conduct of a third party and secondly when authorities failed to take appropriate measures within the scope of their powers which might have been expected to avoid that risk.455 This last requirement is the so-called criterion of a reasonable and appropriate measure.456 This positive duty involves all public and private activities that can jeopardize life. Consequently, risks to life associated with hazardous development activities which by their very nature are dangerous, fall undoubtedly into the duty of the State to adopt positive measures. Ensuring the enjoyment of the right to life requires also taking positive measures to protect the life of the individual life from threats originating in hazardous development activities. In the case of Öneryldiz, the European Court of Human Rights developed principles whose main purpose is the prevention of infringements of the right to life as a result of such activities. According to the Court, the primary duty of the State is to develop a legislative and administrative framework which provides individuals with an effective protection against threats to their lives. For this purpose, legislation governing dangerous activities should give particular attention to the level of the potential risks to human lives. Furthermore, such regulations should apply to all stages related to the activity to range from licensing, set-up, operation, security and supervision. A key point of these rules is that they should be compulsory for all those responsible for the effective protection of citizens whose lives might be endangered by inherent risks. Additionally, the European Court pointed out that relevant regulation related to the development of hazardous activities should provide appropriate procedures which embody technical aspects of the activity in order to identify any shortcomings in the process as well as errors committed by those responsible at the various levels.457 In conclusion, all these standards to draft and enact laws related to dangerous activities ensure an effective protection of the right to life at both vertical and horizontal levels. In addition, dangerous development activities can be a source of severe environmental degradation which might jeopardize human life and health. The impact of environmental pollution on the right to life will be analyzed hereafter. 455 European Court of Human Rights, Osman vs The United Kingdom App no 87/1997/871/1083 (1998), Par. 116; European Court of Human Rights, Mastromatteo vs Italy App no 37703/97 (2002), Par. 68; European Court of Human Rights, Gongadze vs Ukraine App no 34056/02 (2006), Par. 165 456 European Court of Human Rights, Plattform ”Ärzte für das Leben” vs Austria App no 10126/ 82 (1998), Par. 34 457 European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 90

134

The Link Between Human Rights and the Environment

Severe environmental contamination and degradation poses a number of threats to human life and health. In some cases, depending of the severity, environmental impact could even impose upon States the obligation to adopt appropriate measures to prevent such risk or to respond when persons have suffered an injury.458 In fact, in the Yakye Axa case, the Inter-American Commission of Human Rights emphasized the duty of the States to take positive measures to protect life, particularly in cases where the life of vulnerable persons or groups is at risk.459 In the particular case of indigenous peoples, the respect of the right of these groups to life depends on the recognition and protection of the right to land and access to their traditional areas of subsistence since their existence is inextricably linked to the natural environment.460 Several indigenous peoples live in highly sensitive eco-regions, rich in natural resources such as rainforest. Unfortunately, the process of ecological damage has been accelerated in those regions where an extensive extraction of natural resources takes place. This has resulted in displacement, marginalization and even the disappearance of indigenous groups.461 In Yanomami case, the Inter-American Commission observed that the construction of a highway gave rise to the invasion of indigenous territories. These invasions provoked a considerable number of deaths, mainly from epidemics.462 Since these invasions were carried out without prior and adequate protection to the life and health of the Yanomami Indians, the Inter-American Court established the failure of the Brazilian government to take timely and effective measures to protect inter alia the right to life of the Yanomami group.463 Similarly, in the Ogoni case, the African Commission on Human Rights stressed in Ogoni case the negative consequences of pollution and environmental degradation as result of oil extraction and production on the living conditions of the Ogoni people.464 Due to the vulnerability of these groups, special provisions were anchored in international human rights agreements to ensure the realization of the right to life of indigenous peoples. Accordingly, both Article 4 (1) of the Convention 169 ILO and Article 8 (2) UNDRIP impose on 458 Inter-American Commission on Human Rights, ‘Report on the Situation of Human Rights in Ecuador’ OEA/Ser.L/V/II.96 (1997), ch VIII (88) and (92) 459 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 162 460 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 168 461 Ludescher, Menschenrechte und indigene Völker (2004) 110 462 Inter-American Commission of Human Rights, Yanomami vs Brazil (1985) Case 7615, Report no 12/85, Par. 10 (b) 463 Inter-American Commission of Human Rights, Yanomami vs Brazil (1985) Case 7615, Report no 12/85, Par. 1 of the resolution 464 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 67

Substantive Rights

135

States the duty to adopt special and appropriate measures to safeguard the life, institutions, property, labour, culture and environment of indigenous people. d.

Conclusions

The right to life is at the top of the hierarchy of human rights guarantees since the implementation of other human rights strongly depends on the realization of the right to life in the first place. Due to the significance and irreducibility of the legal asset protected by the right to life, this guarantee cannot be subject to derogation even in cases where public order is disturbed. However, international human rights instruments establish restrictive exceptions which allow for the deprivation of life. In this respect, the ICCPR and the American Convention on Human Rights prohibit the arbitrary deprivation of life. However, they do not provide any specific list of cases which justify the interference with the right to life. By contrast, the European Convention on Human Rights establishes three particular cases in which deprivation of life is allowed. Furthermore, the right to life imposes upon States negative and positive obligations. In this context, States have the duty to prohibit the arbitrary or intentional deprivation of life by state bodies or third parties as well as the duty to protect the right to life by law. With respect to the negative duty, States must refrain from any arbitrary or intentional deprivation of life perpetrated either by the state bodies or by third parties. This implies that States are prohibited to take life in unreasonable or disproportionate circumstances. Moreover, this duty imposes upon States the obligation to rule on any deprivation of life by State authorities within their domestic legislation as well as to provide adequate institutions and effective procedures to prevent, investigate and penalize interferences with the right to life by State bodies or private actors. With respect to dangerous activities resulting in the loss of life, states authorities fail to comply with this obligation when their negligence cause deprivation of life. In the particular case of extraction activities, violations to the right to life can also occur when state officials or third parties exercise acts of violence against those affected by such activities. States also have a positive obligation to undertake all appropriate measures to protect and preserve the right to life. This implies on the one hand that States are called on to provide individuals with minimum living conditions to allow a dignified existence. Due to economic limitations, States are granted with a wide margin of discretion to decide the extent to which these necessities will be covered. However, States can be held responsible for the death of an individual when State bodies have directly restrained the access of individuals to minimum requirements such as health care, nourishment or clean water. Regarding the development of hazardous activities, the protection from risks to life associated with such activities is also a part of the obligation of the State to adopt positive

136

The Link Between Human Rights and the Environment

measures. Accordingly, States have the obligation to adopt legislation and procedures which effectively protects individuals from threats of life resulting from development of hazardous activities. Furthermore, the enjoyment of the right to life also depends on a healthy environment. Since dangerous activities may give rise to environmental degradation, States are also obliged depending of the severity of such impact to undertake appropriate measures to prevent such risk or to effectively respond to injuries. Since the extraction of energy resources can be considered a hazardous activity which may threat human life and the environment, States are compelled, on the basis of the right to life, to draft, enact and implement legislation to govern the development of extraction activities. In addition, this legislation should provide technical measures as well as mechanisms to prevent and respond to injuries to life caused by such activities. With respect to environmental issues, the extraction of energy resources may affect the quality and quantity of vital natural resources such as water or soil. Therefore, States are also under an international obligation to ensure access to minimum conditions that are basic for life. Finally, States must abstain from and repeal any act of violence against people affected by extraction operations. On the basis of the right to life, States are compelled to shape and implement regulations, procedures and institutions which protect the right to life through safe and sustainable extraction operations.

2.

The Human Right to Property

a.

Legal Foundations

The right to property can be defined as a human right that imposes upon States a positive and a negative obligation. On the one hand, States are obliged to refrain from any interference with the right to property unless a legal reservation or an intervention authorization is laid down by law. On the other hand, States have a positive duty to protect individuals from violations committed by third parties as well as from current or threatening adverse effects from natural or man-made disasters.465 In effect, the European Court of Human Rights determined in the case of Öneryildiz vs Turkey that the effective exercise of the right protected in Article 1 of the First Protocol required not only the State not to interfere (negative obligation) but also to undertake positive measures of protection, especially in relation to those measures that link the legitimate expectation of 465 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 111, 118 – 120; Nowak, Einführung in das internationale Menschenrechtssystem (2002) 65 – 66

Substantive Rights

137

measures taken by the authorities and the effective enjoyment of possession.466 Consequently, the Court stressed that a break of the positive obligation contained in the right to property is present, for example, when State authorities do not undertake all within their power to protect the proprietary interests of the petitioners to avoid the resulting destruction of their house.467 On this basis, it is possible to assert that the human right to property has a dual nature. It is both a civil as well as an economic and social right since it protects the economic and social interests of individuals against the State’s intervention and violations committed by third parties.468 Several international and regional human rights instruments have embodied the human right to property ; however, the content and the dimension of this right can differ among treaties depending on the political and historical context in which they were originated. At international level, the United Nations Declaration of Human Rights is the first international instrument which in its Article 17 recognizes the right to property and the prohibition of arbitrary deprivation of it. Unfortunately, it makes no reference either to compensation or to the function of property as means to satisfy basic needs. Both International Covenants on Human Rights do not make any explicit reference to the right to property. Nonetheless, they provide an indirect protection to this right. For example, the fulfilment of the right to housing and food embodied in Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) depends on the State’s respect for and its protection of property rights over houses and harvest. Furthermore, the right of access to justice anchored in Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) obliges the State to provide an independent judicial body. As a result, this right protects the right to property insofar as an independent tribunal is vested with the authority to rule on the legality of expropriation and compensation.469 Likewise, the non-discrimination principle contained in Article 26 of the ICCPR provides an additional protection to the right to property. In case of Simunek and others vs the Czech Republic, the Human Right Committee asserted that although the right to property is not protected under the umbrella of the ICCPR, neither the confiscation of private property nor the failure by a State party to pay compensation for such confiscation should be based on discriminatory grounds in breach of ICCPR Article 26.470 At regional level, the right to property is embodied in Article 1 of the First Additional Protocol to the European Convention on Human Rights, 466 European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 134 467 European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 135 – 136 468 Ludescher, Menschenrechte und indigene Völker (2004) 285 469 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 485 – 486 470 HRC, Simunek and Others vs Czech Republic (1995) no 516/1992, Par. 11.3

138

The Link Between Human Rights and the Environment

Article 21 of the American Convention on Human Rights (American Convention on Human Rights) and in Article 14 of the African Charter on Human and Peoples’ Rights (African Charter of Human and Peoples Rights). Although all these three regional human right instruments protect the peaceful use of property, the regulation of the scope and dimension of this human right differs among them. For the elucidation of the scope and dimension of the right to property, the provisions embodied in the three regional human right treaties are going to be analyzed hereafter. With respect to the scope of protection, the First Additional Protocol to the European Convention on Human Rights recognizes the entitlement of every natural or legal person to the peaceful enjoyment of his possession. The European Court of Human Rights has dealt with the content of the right to property in several cases. According to the Court, the concept of “possessions” referred to in the first part of Article 1 of the First Protocol has ‘an autonomous meaning which is not limited to the ownership of physical goods and is independent from the formal classification in domestic law’. Thus, for the purpose of this provision, certain other rights and interests constituting assets such as intellectual property, may also be considered ‘property rights’ and hence ‘possessions’.471 Likewise, the African Charter on Human and Peoples Rights guarantees in Article 14 that the right of property. In case of Enderois vs Kenya, the African Commission examined the definition of this protection in depth, thereby establishing the content of the right to property. According to the Commission, the right to property includes the right to have access to one’s property ; the right to undisturbed possession, use and control of such property ; the right not to have one’s property invaded or encroached; as well as the economic resources and rights over common land.472 Within the Inter-American protection system, the American Convention of Human Rights protects in Article 21(1) everybody’s right to the use and enjoyment of one’s property. In the case of Ivcher-Bronstein vs Peru, the Inter-American Court of Human Rights defined the term ‘property’ as material objects that might be appropriated and also any right that might form an integral part of a person’s assets. This includes all movable and immovable property, corporeal and incorporeal elements and

471 European Court of Human Rights, Matos e Silva LDA vs Portugal App no 15777/89 (1996), Par. 75; State authorities did not do everything within their power to protect the proprietary interests of the applicant’s and to avoid the resulting destruction of their house 124; European Court of Human Rights, Anheuser-Busch Inc vs Portugal App no 73049/01 (2007), Par. 63 472 African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 186

Substantive Rights

139

any other intangible object of any value.473 On the basis of the interpretation, the Inter-American Court of Human Rights supported the view that communal property of members of the indigenous communities is also protected under the umbrella of Article 21 of the Inter-American Convention.474 The protection of individual or collective property established in the regional human rights instruments is, however, not absolute and therefore subject to limitations. The first limitation established by both the First Protocol to the European Convention and the American Convention on Human Rights is the legislative power of the State to regulate the use of property in accordance with the general interest. According to the interpretation of the European Court of Human Rights, provisions to control the use of property in accordance with the general interest are justified when they pursue a legitimate objective of public policy.475 As a result, environmental conservation and the protection of the rights of vulnerable groups to ownership over their land and access to its resources could be considered a legitimate objective of public policy which justifies limiting the exercise of the right to the use of natural resources. A second limitation of the human right to property which is recognized as being customary international law and is closely related to the principle of permanent sovereignty over natural resources is the power of the State to deprive individuals of their property.476 This deprivation comprehends both formal expropriation defined as the compulsory transfer of ownership to the State and the facto expropriation qualified as a limitation on the use and disposal of the object although the person is still the formal owner of the property.477 The European Court of Human Rights confirmed the existence of both kinds of deprivation of property. According to the Court, the Convention guarantees only those rights which are ‘practical and effective’. Therefore, it is necessary not only to consider if a formal expropriation has taken place but also to analyze the realities of the situation behind the appearances, i. e. to ascertain if the situation amounted to a de facto ex-

473 Inter-American Court of Human Rights, Ivcher-Bronstein vs Peru (2001) Serie C no 54 Par. 122 474 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 148 475 European Court of Human Rights, Fredin vs Sweden App no 12033/86 (1991), Par. 4; Sieghart, International Law of Human Rights (1983) 257; Ludescher, Menschenrechte und indigene Völker (2004) 289 ; Boyle Alan, ‘Human Rights and the Environment: A Reassessment’ (2008) vol 18 Fordham Environmental Law Review 471 – 511 476 Ronne, ‘Public and Private Rights to Natural Resources and Diferences in their Protection?’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 64 477 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 489

140

The Link Between Human Rights and the Environment

propriation.478 In order to prevent arbitrary deprivations, the State’s authority is also subject to limitations. According to all three regional human rights conventions, the power of the State to deprive someone of property is only justifiable when the taking of property is carried out in accordance with the law and founded on public interest or need. This could mean that States enjoy wide discretionary powers when deciding when public interest justifies an expropriation. However, the principal of proportionality sets a limit to this discretionary power insofar as a fair balance must be struck between the means employed and the aim sought to be realized by a measure that deprives a person from his possessions.479 Furthermore, in expropriation cases the principle of proportionality plays a significant role in relation to compensation. The American Convention goes a step further and establishes payment of a fair compensation as an additional condition for expropriation. By contrast, Article 1 of the First Protocol does not expressly determine the right to compensation. Nevertheless, the European Court has stressed in its case law that compensation is measure that complies with the requisite of fair balance. Consequently, an expropriation without compensation or with compensation which does not cover an amount reasonably related to the value of the deprived property normally represents a disproportionate interference.480 Moreover, the European Court defined the parameters under which compensation to national and foreign citizens is made. According to the Court, the expropriation of foreign nationals must be compensated in all cases in accordance with minimal standards established under the ‘general principles of international law’ while nationals are entitled to compensation except in exceptional circumstances in accordance with the principal of proportionality.481 After analysing the legal foundations of the right to property, the link between this right and the environment in the context of the extraction of energy resources will be elucidated hereafter.

478 European Court of Human Rights, Jahn and others vs Germany Apps nos 46720/99, 72203/ 01 and 72552/01 (2004), Par. 65 479 European Court of Human Rights, The Holy Monasteries vs Greece App no 13092/87; 13984/ 88 (1994), Par. 70; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 489 480 European Court of Human Rights, The Holy Monasteries vs Greece App no 13092/87; 13984/ 88 (1994), Par. 71; European Court of Human Rights, The former King of Greece and Others vs Greece App no 25701/94 (2000), Par. 89; European Court of Human Rights, Scordino vs Italy App no 36813/97 (2006), Par. 95 481 Ludescher, Menschenrechte und indigene Völker (2004) 289; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 489

Substantive Rights

b.

141

Linking the Right to Property and the Environment in the Context of the Extraction of Energy Resources

Economic development requires a large supply of energy resources to support economic growth. The growing demand for resources in turn puts pressure on the environment and the protection of human rights. In this scenario, the right to property plays a crucial role in the protection of right holders against interferences that result from extraction activities. Major right holders whose property rights are affected by the extraction of energy resources, are the State, investors and individuals or communities. Owing to the principle of the permanent sovereignty over natural resources, States have on the one hand the right to extract natural resources with the aim to promote national development and the well-being of people within their jurisdiction. On the other hand, States have the duty to conserve the environment as well as to protect and respect human rights. Investors are other right holders. They contribute capital, know-how and technology to the development of energy resources. As a result, the property rights of investors acquired on the base of license systems to extract natural resources and the economic benefit expectation, derived from such investments, must undoubtedly be protected by the State. Additionally, individuals and communities have the right to freely use their land and have access to natural resources essential for their survival. As inferred from this analysis, the extraction of natural resources overlaps the different interests of right holders over property. This, in turn, can lead to legal conflicts, environmental damage and to systematic human rights violations if States are not able to strike a ‘fair balance’ between these conflicting interests. (Figure 4.1)

Figure D.1: Conflicting Interests in Relation to the Right to Property

142

The Link Between Human Rights and the Environment

Legitimate interference of the State with property must be based on a ‘fair balance’ between the general interest of the community and the requirement to protect fundamental rights.482 Legitimate aims in accordance with the ‘public interests’ are either measures which pursue economic development or those which are designed to achieve greater social justice (Figure 4.2).483 With respect to the extraction of energy resources, two legitimate aims come into play. A first legitimate aim pursues environmental conservation and the protection of human rights in order to ensure social justice. To achieve this purpose, States can limit the extraction of natural resources by restraining their sovereignty over natural resources or by limiting the rights of investors to develop them. Regarding this last point, in the case of Fredin vs Sweden, the European Court of Human Rights ruled on the revocation of permit for the exploitation of natural resources with the legitimate aim to protect nature. The Court determined that the revocation of the authorization to exploit mineral resource did not involve the deprivation of possession according to Article 1 of Protocol No. 1, rather it could be characterized as control on the use of the property, thus falling within the scope of the second paragraph of Article 1.484 In fact, the Court recognized that in today’s society the protection of the environment is an increasingly important consideration.485 Furthermore, in the same decision it addressed the ‘fair balance’ between conflicting interests of environmental protection against economic development and natural resources development. In this respect, the Court recognized the wide margin of appreciation of States when choosing means of enforcement and when ascertaining whether the consequences of enforcement are justified and within general interest for the purpose of achieving environmental objectives pursued by the law.486 A second legitimate aim relates to the interest of the State to extract natural resources within its territory in order to achieve economic development. Accordingly, States are free to make use of their power to interfere with the property rights of individuals or communities to land and with their right to access to natural resources as long as the rights and interest of individuals are sufficiently balanced against the economic benefits of the community as a whole.487 The European Court of Human Rights has ratified in its jurisprudence the freedom of States to prioritize their national interest whether they are economic development or environmental protection provided that a fair balance is maintained 482 483 484 485 486 487

European Court of Human Rights, Fredin vs Sweden App no 12033/86 (1991), Par. 51 European Court of Human Rights, Scordino vs Italy App no 36813/97 (2006), Par. 97 European Court of Human Rights, Fredin vs Sweden App no 12033/86 (1991), Par. 47 European Court of Human Rights, Fredin vs Sweden App no 12033/86 (1991), Par. 48 European Court of Human Rights, Fredin vs Sweden App no 12033/86 (1991), Par. 51 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/97 (2003), Par. 129; Birnie and others, International law & Environment (2009) 287

Substantive Rights

143

D.2: Fair Balance

between the rights of the individual and the interest of the community as a whole. Apart from the treatment given by the European Court to the right to property, both the African Commission and the Inter-American Court of Human Rights have based the protection of the rights of indigenous peoples from energy resource extraction on the human right to property. This approach will be analyzed below. c.

Indigenous Peoples and the Right to Property

Economic development, population growth and scarcity of natural resources have given rise to the violation of human rights, in particular of vulnerable groups of citizens. Since colonization, indigenous peoples have suffered systematic discrimination by the State. Their territories and natural resources have been taken away by the States on the grounds of national development. In order to protect the rights of indigenous people, multiple international law treaties have stressed the social and ecological meaning of property over land and natural resources for indigenous peoples.488 With respect to the social meaning, both international covenants acknowledge the inherent right of all peoples to enjoy and utilize their natural resources fully and freely. Moreover, both Covenants prohibit that people be deprived of their own means of substance.489 This recognition emphasizes the significance of property over land and resources for the survival and development of indigenous peoples. Regarding the ecological meaning of property, it is embodied in Principle 22 of the Rio Declaration. The access to land and resources constitutes a fundamental precondition for the continuation and continuing development of their knowledge and traditional practices. According to Principle 22, knowledge and traditional practices play in 488 Ludescher, Menschenrechte und indigene Völker (2004) 290 – 291 489 Art. 1 and 47 ICCPR; Art. 1 and 25 ICESCR

144

The Link Between Human Rights and the Environment

turn a vital role in environmental management and development. On this basis, the realization of the right of indigenous peoples to property can contribute to the achievement of conservation goals and to the sustainable management and control of natural resources. This social and ecological interdependence between indigenous peoples and their land and resources has been internationally recognized and protected. The culture, spiritual life, integrity and economic survival of indigenous peoples depend on their land and on access to their natural resources. Therefore, States are called on to respect the special meaning of this relationship for the cultures and spiritual values of these peoples.490 In particular, the human right of indigenous peoples to property is founded on the close ties of these peoples with their traditional land and those natural resources associated with their culture as well as with the incorporeal elements derived from them. This relationship between indigenous peoples and land gives rise to a communal form of property. According to this collective property, the ownership of land is not held by an individual but rather by a group and its community. On this basis, the relations of indigenous peoples with their land go beyond the understanding of land as a possession and as a means of production. For indigenous people, land constitutes a material and spiritual element which must be fully enjoyed for the preservation of their cultural legacy and for transmission to future generations.491 The Inter-American Court of Human Rights has corroborated in several rulings the importance of this relationship and has, therefore, recognized that the right to communal property falls within the protection scope of Article 21 of the American Convention.492 The Court based its recognition of collective property on the evolutionary interpretation of the terms of international instruments for the protection of human rights and on Article 29 of the American Convention which bans interpreting provisions as restricting the enjoyment or exercise of any right or freedom recognized by virtue of laws or any human rights treaty.493 Key legal provisions used by the Court to interpret the right to com490 Art. 13(I) C169 ILO 491 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 149; Inter-American Court of Human Rights, Moiwana Community vs Surinam (2005) Serie C no 124, Par. 133; Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Pars. 131, 135 – 136; Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Community vs Paraguay (2006) Serie C no 146, Par. 118 492 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 148 – 149; Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 143; InterAmerican Court of Human Rights, Sawhoyamaxa Indigenous Community vs Paraguay (2006) Serie C no 146, Par. 120 493 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 146 – 148

Substantive Rights

145

munal property are the right to self-determination anchored in Article 1 of both international covenants and the right of minorities to enjoy their culture in accordance with a way of life closely associated with their territories and use of resources as embodied in Article 27 ICCP.494 This interpretation of the right to communal property made by the Inter-American Court was subsequently adopted by the African Commission as case law.495 The right of indigenous peoples to communal property over their land and the right to use the natural resources within their territories impose obligations on the State. On the basis of the human right to property, States have the duty to respect, protect and fulfill human rights. With respect to the obligation to respect property, States are called on to refrain from interfering with the enjoyment of land and with the free use of resources owned or at the disposal of individuals or collective groups for the purpose of satisfying their rights-related needs. Moreover, States are required to protect indigenous people’s property by adopting positive measures that guarantee members of indigenous and tribal peoples the full and equal exercise of their right to the territories, traditionally used and occupied by them. This requirement implies not only the development of appropriate legislation and the promotion of effective remedies necessary to give domestic legal effect to such rights but also the protection of right holders from political, social and economic interference by third parties.496 In this context, the Inter-American Court of Human Rights developed three general requirements which States are called on to comply in connection with the right of indigenous peoples to communal property. First, States have the duty to legally recognize the diverse forms and modalities of control, ownership, use and enjoyment of lands, territories and resources of indigenous people. In other words, the recognition should be conducted with due respect to the customs, traditions and land tenure systems of indigenous peoples.497 Second, States are called on to recognize the property and ownership rights of indigenous peoples with respect to their lands, territories and resources historically occupied by them and to 494 HRC, General Comment No. 23, The rights of minorities (Art. 27) (1994), Pars. 1, 3.2; InterAmerican Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Pars. 93 – 94 495 African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 93 496 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 45 – 46; Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Par. 91; African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 196 497 Art. 26(3) UNDRIP

146

The Link Between Human Rights and the Environment

undertake special measures to protect these rights.498 Finally, States are obliged to recognize the permanent and inalienable title of indigenous peoples to the property and rights of use which have existed prior to the creation of the State.499 On this basis, the property rights of indigenous peoples over their land and their natural resources can be effectively implemented as far as States undertake all appropriate and effective measures that guarantee the full exercise of these rights. Two particular measures for the protection of indigenous peoples’ property rights are the demarcation of their territories and the official recognition of property through a ‘valid title’. An important issue related to the duty of States to respect the property rights of indigenous peoples over their lands and resources is the delimitation, demarcation and titling of those territories which have been exclusively occupied by them and to which they traditionally have had access to ensure their subsistence and the exercise of their traditional activities.500 During European conquest and colonization, indigenous peoples lost their status as landowners. Consequently, they have not held ‘valid titles to land’ that prove their possession and property to the authorities of the new States.501 The lack of an effective delimitation and demarcation of the indigenous peoples’ territories has caused repeated conflicts. For example, in case of Mayagna vs Nicaragua, the absence of demarcation and titles gave rise to a climate of constant uncertainty among the members of this indigenous community since they did not know for certain the geographic extension of their communal property and the limits of the territory within which they were able to freely use and enjoy natural resources.502 In addition, the lack of delimitation, demarcation and titling has caused conflicts between indigenous peoples and privates, especially, in cases where States have granted concessions to third parties to make use of the property and resources located in an area which could correspond, fully or in part, to indigenous peoples.503 Furthermore, the lack of demarcation and titling has led to arbitrary decisions by authorities in some States. Citing the absence of applicable law, 498 Inter-American Commission of Human Rights, Mary and Carrie Dann vs The United States of America (2002) Case 11140, Report no 75/02, Par. 130; African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 187 499 Inter-American Commission of Human Rights, Mary and Carrie Dann vs The United States of America (2002) Case 11140, Report no 75/02, Par. 130 500 Art. 14(1) C169 ILO 501 Ludescher, Menschenrechte und indigene Völker (2004) 292 502 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 153 503 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 153; Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Par. 110

Substantive Rights

147

authorities have had excessive discretionary powers to decide which lands belong to indigenous peoples and which does not as well to unilaterally change the limits of indigenous territories. Even if all necessary domestic legal steps to ensure the effective use and enjoyment by indigenous peoples of their traditional lands have been adopted and incorporated into national legislation, the effectiveness of the recognition and registration of indigenous territories has failed either due to the ‘time’ factor and insuperable bureaucratic hurdles or due to the alienation of indigenous land through illegal coercive measures.504 Since the right of indigenous peoples to own, use, develop and control the lands, territories and resources is originated before the creation of national law, the right of indigenous peoples to property cannot be easily dismissed through unilateral measures undertaken by the State.505 In effect, the possession of indigenous communities over land is a sufficient requirement to obtain official recognition of property and its consequent registration in land register.506 Furthermore, if indigenous peoples were deprived of their possession as result of illegal measures, they maintain their property rights of their territories since the right of indigenous peoples to restitution and claim of their traditional lands lasts indefinitely over time.507 To effectively guarantee the permanent use and enjoyment of indigenous peoples’ territories and resources, demarcation, delimitation and titling must be recognized by law as well as implemented in practice.508 According to the InterAmerican Court of Human Rights, a strictly juridical or abstract recognition of indigenous peoples’ property is meaningless if the lands, territories and resources have not been physically established and delimited.509 With the aim to

504 Mart†nez Cobo, Study of the problem of discrimination against indigenous populations (1987) Pars. 203, 220, 222; Ludescher, Menschenrechte und indigene Völker (2004) 293; Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 155 505 Art. 26(3) UNDRIP; Ludescher, Menschenrechte und indigene Völker (2004) 292 506 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 151; Inter-American Court of Human Rights, Moiwana Community vs Surinam (2005) Serie C no 124, Par. 209; Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 215; Inter-American Court of Human Rights, Moiwana Community vs Surinam (2005) Serie C no 124, Par. 209: Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Par. 115 507 Inter-American Court of Human Rights, Moiwana Community vs Surinam (2005) Serie C no 124, Pars. 134 508 Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Par. 115; African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 206 509 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay

148

The Link Between Human Rights and the Environment

establish the territories of indigenous people, States must as a first step identify the lands that were traditionally occupied by indigenous peoples.510 In a second step, States must grant members of indigenous and tribal peoples title to their territory rather than the mere ‘privilege to use the land’ which could be later taken away by the same State or trumped by real property rights of third parties.511 An important precondition for obtaining official title to land is the delimitation and demarcation of the territory traditionally used and occupied by indigenous peoples in fully informed consultations with members of the community and other neighbouring people and in accordance with their customary law, traditions and practices.512 Until the delimitation, demarcation and titling of the indigenous peoples’ territory has not been completely carried out, States must abstain from actions carried out either by the State itself or third parties that affect the existence, value, use or enjoyment of indigenous property, with the proviso that the State has first obtained the free, informed and prior consent of the indigenous peoples concerned.513 In the light of this background, States have the duty to firstly demarcate and grant collective title over the lands to indigenous peoples before making way for natural resource extraction projects which can affect the close relationship of indigenous peoples with their land and consequently the exercise of their human rights, in particular their right to property. With respect to the extraction of energy resources, States have, owing the principle of permanent sovereignty over natural resources, the right to extract natural resources with the proviso that, among other duties, States respect and protect the human rights of the population affected by the extraction.514 Since indigenous peoples have suffered from historical injustices as a consequence of

510 511

512

513 514

(2005) Serie C no 125, Par. 143; Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Par. 115 Art. 14(2) C169 ILO Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 153; African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 206 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 153(a); Inter-American Court of Human Rights, Moiwana Community vs Surinam (2005) Serie C no 124, Pars. 133, 209; Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Pars. 110, 115 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 153(b); Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, operative Par. 5 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 54; African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 256, 260

Substantive Rights

149

colonization and the dispossession of their territories and resources, international human rights treaties grant special protection to the rights of indigenous peoples, among them the right to property.515 By virtue of the close ties of indigenous peoples with their traditional territories and natural resources, a core component of the human right of indigenous peoples to property constitutes their right to use, manage and conserve the natural resources located in their lands and traditionally used by them.516 Both the African and the InterAmerican human rights systems recognize the right of indigenous peoples to property of their natural resources. The Inter-American Court of Human Rights is the first body to have developed the scope and content of the right to property of natural resources in its case law.517 In the cases of Yake Axa vs Paraguay and of Sawhoyamaxa vs Paraguay, the Inter-American Court declared for the first time that the protection of Article 21 of the American Convention also covers the right of indigenous peoples of access to their natural resources.518 Subsequently, in the case of Saramaka vs Surinam, the Inter-American Court determined the content of the right to property over natural resources by stating that the members of tribal and indigenous communities are owners of those natural resources which they have traditionally used within their territory and which are necessary for their very physical and cultural survival,519 development and continuation of their way of life.520 Despite of the international recognition of the right of indigenous peoples to property over the natural resources, the Court also stressed in its case law that this protection should not to be interpreted as absolute since States are empowered on the grounds of the principle of permanent sovereignty over natural resources to extract natural resources even in the territory of indigenous people.521 The extraction of natural resources within the territories of indigenous 515 Preamble, UNDRIP 516 Art. 15(1) C169 ILO; Art. 26(1) UNDRIP 517 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 56 – 58 518 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 137; Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Community vs Paraguay (2006) Serie C no 146, Par. 118 519 According to the Inter-American Court of Human Rights, the term ‘survival’ is to be understood in the context of indigenous and tribal people as the ability of these peoples to preserve, protect and guarantee their special relationship with their territory, so that they continue living their traditional way of life, see Inter-American Court of Human Rights, Saramaka People vs Surinam (2008) Interpretation of the Judgment Serie C no 185, Par. 37 520 Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Pars. 121 – 122 521 Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Par. 126

150

The Link Between Human Rights and the Environment

peoples can cause real or apparent contradictions between communal property and state or private property. On the one hand, indigenous peoples are owners of those natural resources traditionally used by them and important for their survival. On the other hand, States have the power to retain the ownership over mineral and subsurface resources as well as to reserve rights of access to other resources in lands belonging to indigenous peoples with the aim to grant concessions for the development, use and exploration of minerals, water or other resources.522 Given these differing positions, the settlement of disputes relating to land rights including the rights relating to the exploration and exploitation of natural resources, requires careful consideration of both the State’s economic and development interests as well as the cultural, spiritual, social and economic interests of the indigenous peoples situated in the zones where those resources are located.523 To guarantee the balance between these different interests, international human rights instances have developed guidelines to establish legal restrictions to enjoy and exercise the right to property. In the case of Yakye Axa vs Paraguay, the Inter-American Court on Human Rights ratified that a State might restrict the use and enjoyment of the right to property if the restrictions were: previously established by law ; necessary ; proportional and with the aim of achieving a legitimate objective in a democratic society.524 In case of Saramaka vs Surinam, the Inter-American Court developed an additional criterion to be taken into account in cases where the restrictions to the right to property may amount to a denial of their traditions and customs in a way that endangers the very survival of the group and its members. According to this criterion, the State is allowed to restrict the right of indigenous peoples to use and enjoy their traditionally owned lands and natural resources only when such a restriction complies with the aforementioned requirements and, additionally, when it does not deny their survival as a tribal people.525 Moreover, the Inter-American Court 522 Art. 15(2) ILO; Art. 32(2) UNDRIP 523 ILO – Committee of Experts on the Application of Conventions and Recommendations, Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under Article 24 of the ILO Constitution by the Confederaciûn Ecuatoriana de Organizaciones Sindicales Libres (CEOSL) (162000ECU169, 2000) Par. 36 524 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 144; Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Community vs Paraguay (2006) Serie C no 146, Par. 138; Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Par. 127; African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Pars. 211 – 215, 225 – 226 525 HRC, Länsman et al vs Finland (1996) no 671/1995, Par. 9.4; Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Par. 128; See footnote 437

Substantive Rights

151

established a number of complementary requirements that States are called on to observe before restraining the right of indigenous peoples to property. Given the ecological impact of extraction projects on indigenous peoples’ life, complementary safeguards against interference with the right to property have been developed by the Inter-American Human Rights Court. On the one hand, these safeguards embrace those natural resources important for the survival of indigenous peoples. According to the Inter-American Court, water and forest are essential resources for indigenous peoples since they provide material and nonmaterial benefits important for their cultural, economic and social development.526 On the other hand, such safeguards also encompass those natural resources that have not been traditionally used by indigenous peoples as part of their cultural identity or economic system such as gold mining or oil extraction; nevertheless, the extraction activities of such resources will necessarily have a negative impact on the quality and quantity of other natural resources necessary for the survival of these peoples such as waterways or forests.527 Three safeguards have therefore been developed by the Inter-American Court with the aim to preserve, protect and guarantee the special relationship that the members of the indigenous community have with their territory. The first safeguard obliges the State to ensure the effective participation of the members of indigenous people, in conformity with their customs and traditions, in the decision-making process towards any development, investment and exploration or extraction plan528 within their territories. The second safeguard commits the State to guarantee that the indigenous peoples will receive a reasonable benefit from the revenue accruing from the development of any such plan within their territory including compensation for environmental damage. The third requirement compels the State to ensure that no concessions will be issued for indigenous territory without a prior environmental and social impact assessment performed by technically capable entities, with the State’s supervision. All these safeguards

526 Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Par. 122; Inter-American Court of Human Rights, Saramaka People vs Surinam (2008) Interpretation of the Judgment Serie C no 185, Par. 52 527 Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Pars. 126, 155; Inter-American Court of Human Rights, Saramaka People vs Surinam (2008) Interpretation of the Judgment Serie C no 185, Par. 53 528 The Inter-American Court of Human Rights defined ‘development or investment plan’ as any proposed activity that might affect the integrity of the lands and natural resources within the territory of the indigenous people, see Inter-American Court of Human Rights, Saramaka People vs Surinam (2008) Interpretation of the Judgment Serie C no 185, footnote 127

152

The Link Between Human Rights and the Environment

aim to ensure the survival of indigenous peoples and to vindicate their rights to property and access to natural resources.529 d.

Conclusion

The human right to property entails a positive and negative obligation. On the one hand, States have the duty to refrain from any interference with an individual’s right to property. On the other hand, they are compelled to protect an individual’s property from interference by third parties. Several international human rights treaties include in their scope of protection the right to property ; nevertheless, the content and scope of this right differ among treaties. The first international instrument which recognizes the right to property is the United Nations Declaration of Human Rights. Despite the importance of property for individuals, the right to property was not explicitly incorporated in either International Covenant on Human Rights. At regional level, the peaceful use of property is protected under Article 1 of the First Additional Protocol to the European Convention on Human Rights, Article 21 of the American Convention on Human Rights and under Article 14 of the African Charter on Human and Peoples’ Rights. In the light of these provisions, the European and the InterAmerican Court of Human Rights as well as the African Commission of Human Rights developed a separate definition of the right to property in their case law. A common element of these definitions is that property comprises all material and immaterial objects that may be subject to appropriation. On the basis of this common element, the Inter-American Court of Human Rights determined that the protection of communal property of members of the indigenous communities is also protected by Article 21 of the American Convention on Human Rights. Despite the protection of the right to property in regional human rights treaties, the right is subject of certain limitations. In effect, States have the authority to regulate the use of property in accordance with the general interest and even to deprive individuals of their property. However, the exercise of this power is only legitimate when it is proportional, in accordance with the law and when founded on a public interest or need. The European Court of Human Rights has in particular dealt with the principle of proportionality. According to the Court, States have the freedom to prioritize national interest; nevertheless, they must strike a fair balance between the interest of the community and the protection of individual’s possessions. In the context of the extraction of energy resources, legitimate aims that justify deprivation in accordance with the ‘public 529 Inter-American Court of Human Rights, Saramaka People vs Surinam (2007) Serie C no 172, Par. 129

Substantive Rights

153

interest’ are those aims that pursue either national economic development or environmental conservation. This interpretation of the European Court constitutes a guideline to be taken into account by States at the time of deciding if natural resource extraction excels the conservation and realization of human rights or not. In the African and Inter-American human rights protection systems, the right to property has laid the foundations for the protection of the rights of indigenous peoples to their lands and natural resources. Over the millennia, indigenous people have developed a deep relationship with their land. In effect, the cultural and spiritual life as well as the economic survival of these peoples depend on their access to land and natural resources. States have carried out extraction activities in the lands of indigenous peoples citing the needs of national development. This, in turn, has given rise to environmental degradation and the violation of human rights of indigenous people, in particular their right to communal property. In this context, the InterAmerican Court of Human Rights has recognized in several rulings that communal property is protected under Article 21 of the American Convention. On the basis of this recognition, States have the duty to respect, protect and fulfill the rights of indigenous peoples to property. Accordingly, States must refrain on the one hand from interfering with the access of indigenous peoples to land and natural resources. On the other hand, States must undertake all positive measures to ensure the free exercise of the right of communal property. Important measures regarding this issue constitute the demarcation and the granting of collective land titles. According to the Inter-American Court, both measures are a prerequisite for the extraction of natural resources in indigenous peoples’ territories. In addition to the demarcation and titling of land, the Inter-American Court has dealt within the framework of the right to communal property with the use, management and conservation of natural resources located in their lands and traditionally used by indigenous peoples. By virtue of the principle of permanent sovereignty over natural resources, States are empowered to extract natural resources even in the territory of indigenous peoples with the proviso that they respect and protect the human rights of the population affected by extractions. Since the extraction of natural resources can cause environmental harms, the Inter-American Court developed in its case law safeguards to protect natural resources important for the survival of indigenous peoples from ecological impact caused by extraction projects. On the basis of the right to property, human rights bodies have provided important guidelines to be taken into account in the development of extraction projects. On the one hand, States have to balance the public interest with the right of individuals and communities to property. On the other hand, States need to protect the interest of vulnerable groups whose life and survival depend on the interrelation between them and the land and natural resources. The im-

154

The Link Between Human Rights and the Environment

plementation of such guidelines legitimates the execution of extraction projects and ensures the realization of human rights.

3.

The Right to Respect for Private and Family Life and Home

a.

The Human Right to Respect for Privacy, Family and Home and its Ecological Approach

The right to respect private and family life, home and correspondence is one of the cornerstones of a liberal conception of freedom. It has been anchored in several international and regional human rights instruments such as the Universal Declaration on Human Rights530, the International Covenant on Civil and Political Rights531, the American Convention on Human Rights532 and the European Convention on Human Rights533. The core objective of the human right to respect for private and family life, home and correspondence is the protection of the individual’s autonomy to freely develop her or his private and family life free from the interference by others. Since this human right has its roots in individual’s self-determination, its scope of protection embraces a wide range of issues which vary from personal integrity, private and family life to the protection of home and correspondence.534 In order to shape the contents and delimit the scope of this human right, its structure has been built upon three basic components. The first component corresponds to the protection of an individual’s development in all the different domains that compound private life. Due to the wide spectrum of human development, this right aims to ensure multiple facets of private life which range from the physical and psychological integrity, the physical and social identity, to the individual autonomy to decide about his or her personal development. The second element involves the right of a person to build and develop personal relationships with other human beings and with the outside world. On the basis of this right, every person has the freedom to live within a family, to marry and to start a family. Finally, the third component strives for the protection of home and correspondence, understood as those private spaces where individuals develop and strengthen their personal autonomy free from any interference by the State or third parties.535 (Figure 4.3) 530 531 532 533 534

Art. 12 UNDHR Art. 17 ICCPR Art. 11 American Convention on Human Rights Art. 8 European Convention on Human Rights Nowak, CCPR Commentary (2005) 377 (1); Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 434 – 435 535 European Court of Human Rights, Pretty vs The United Kingdom App no 2346/02 (2002), Par. 61; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 434, 436

Substantive Rights

155

Apart from these components, an additional aspect protected under the umbrella of the right to respect private life and home is environmental conservation.

Figure D.3: Components of the Right to Respect for Private and Family Life, Home and Correspondence

Since the 1990s, of the European Court of Human Rights has endorsed in its case law the link between environmental concerns and the right to respect for private and family life and home. Although the European Convention on Human Rights does provide neither a general protection to the environment as such nor expressly guarantees the right to a healthy environment, environmental pollution can give rise to a violation of Article 8 of the European Convention on Human Rights when such negative impact on the environment affects the quality of individual’s life.536 According to the Court, severe environmental pollution may affect an individual’s well being and prevent them from enjoying their homes in such a way as to adversely impact on exercising their right to respect for private and family life and for home.537 With respect to environmental issues, the right to private and family life strives on the one hand to ensure the respect for the quality of private life.538 In effect, the peaceful development of private and family life presupposes an environment free from significant external disturbances which may seriously prevent individuals from exercising their private autonomy. On the other hand, the right to respect home also plays a decisive role in relation to environmental concerns. The right to the actual physical area as well as the right to the quiet enjoyment of the amenities of an individual’s home 536 European Court of Human Rights, Fadeyeva vs Russia App no 55723/00 (2005), Par. 68; European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/97 (2003), Par. 96; European Court of Human Rights, Kyrtatos vs Greece App no 41666/98 (2003), Par. 52; Epiney and Scheyli, Umweltvölkerrecht (2000) 164; Council of Europe, Manual on human rights and the environment (2006) 5, ch II (b) 537 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Par. 51; European Court of Human Rights, Kyrtatos vs Greece App no 41666/98 (2003), Par. 52 538 Council of Europe, Manual on human rights and the environment (2006), ch II (a)

156

The Link Between Human Rights and the Environment

are protected under the umbrella of the right to respect home.539 Usually negative environmental impacts constitute a less rigorous interference which may not fully prevent individuals from the enjoyment of their homes. However, the quality of an individual’s life may be considerably reduced when the nuisances become intolerable or disturbing.540 In cases linked to environmental degradation and nuisance, the European Court of Human Rights has interpreted the notions of private and family life and home as being closely interrelated. This interrelationship between both rights has been named by the Court in its case law as the ‘private sphere’.541 On this basis, in Europe the right to respect for private and family life in conjunction with the right to a home constitute the cornerstones of the conservation of a healthy and balanced environment and of the preservation of environmental media.542 Aiming at the full realization of this human right, positive and negative duties have been imposed to the State. The right to respect for private and family life and home seeks to protect individuals from arbitrary or unlawful interference committed by public authorities or third parties. This imposes upon States negative and positive duties. With respect to the negative duties, the State is required on the one side to respect an individual’s privacy, family, home and correspondence. This means that the State is committed to refrain from arbitrary interference with an individual’s private sphere, physically and psychological integrity and family relationship.543 On the other side, the State has the obligation to protect individuals from unlawful interference or attacks emanated from natural or legal persons with her or his private sphere.544 This duty is expressly embodied in Article 12 of the UNDHR, Article 17 (2) of the ICCPR and Article 11 (2) of the American Convention on Human Rights. Although the obligation to protect from interference by third parties is not included in the wording of Article 8 of the European Convention on Human Rights, this obligation has been broadly recognized and developed in the case law of the European Court of Human Rights. From these negative obligations is derived the positive duty of the State to take all reasonable and appropriate steps to give effect to the prohibition against State interference as well as to the protection of an individual’s private sphere from the action of

539 Council of Europe, Manual on human rights and the environment (2006), ch II, Par. 9 540 European Court of Human Rights, Powell and Rayner vs The United Kingdom App no 9310/ 81 (1990), Par. 40; Schilling, Internationaler Menschenrechtsschutz (2010), 131(289) 541 European Court of Human Rights, Fadeyeva vs Russia App no 55723/00 (2005), Par. 70; Council of Europe, Manual on human rights and the environment (2006), ch II, Par. 9 542 Epiney and Scheyli, Umweltvölkerrecht (2000) 164 543 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 450 544 HRC, General Comment No. 16, The right to respect of privacy, family, home and correspondence and protection of honour and reputation (Art. 17) (1988), Par. 1; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 452

Substantive Rights

157

third parties.545 On the grounds of this positive obligation, the national legislator has a wide margin of discretion to adopt and developed all necessary legislative, administrative and judicial measures to ensure the effective fulfilment of the right to respect for private and family life and home. Some of these measures are for example the enactment of legislation concerning the protection of this right, the setting up of authorities and organs entitled to exercise the control over interferences in accordance with the law, the provision of remedies and access to justice.546 The European Court of Human Rights has adapted these duties derived from the right to respect for private and family life and home to address environmental cases. According to the European Court on Human Rights, the State is obliged by virtue of the obligation to respect to refrain from performing activities which directly result in environmental pollution and consequently affect the enjoyment of privacy, family and home. Likewise, States have a duty to protect individuals from unlawful interference by natural or legal persons. In an environmental context, this means that the States are compelled to regulate activities of the private sector in a manner that guarantees the proper respect for the rights anchored in Article 8 of the Convention.547 In addition to these negative duties, States have the positive duty to undertake all necessary measures such as the adoption of environmental regulations, to prevent and reduce the negative effects resulted from activities of state or private industries.548 Due to the growing influence of industrial development on the environment and on the quality of people’s lives, the European Court of Human Rights has developed in its case law additional measures to strengthen the prevention and reduction of the risks caused by such activities. These measures will be discussed in Section c below. Despite of the growing development of environmental rules and measures, the European Court has emphasized that the effectiveness of such regulations strongly depends on their implementation. The European Court of Human Rights has constantly stressed in its decisions 545 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Par. 51; HRC, General Comment No. 16, The right to respect of privacy, family, home and correspondence and protection of honour and reputation (Art. 17) (1988), Par. 2 546 European Court of Human Rights, X and Y vs The Netherlands App no 8978/80 (1985), Par. 23; HRC, General Comment No. 16, The right to respect of privacy, family, home and correspondence and protection of honour and reputation (Art. 17) (1988), Pars. 1, 2; Nowak, CCPR Commentary (2005) 380 (6) 547 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Pars. 98, 119; European Court of Human Rights, Tatar vs Romania App no 67021/ 01 (2009), Par. 87 548 European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Par. 58; European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/97 (2003), Par. 98

158

The Link Between Human Rights and the Environment

that the effectiveness of the protection of the rights enshrined in Article 8 of the Convention does not only depend on the measures taken by the State in order to prevent or reduce environmental disturbances but rather on the effective implementation of such measures in the practice. In most of the cases related to the environment, a breach of Article 8 was based on a failure of the authorities to respect environmental legislation.549 In fact, States have been held responsible by the European Court either because public authorities did not control pollutant emissions from industrial activities or because they did not guarantee access to essential information that could enable individuals to assess the risks to which they are exposed.550 Accordingly, the failure of the State to control hazardous activities and the lack of an effective implementation of such regulations constitute causes of violation of the right to respect for private and family life and home. The violation of the right to respect for private and family life, home and correspondence implies an arbitrary or unlawful interference by the State or third parties.551 Both arbitrariness and unlawfulness constitute central elements of the breach of this human right. The expression ‘arbitrary interference’ points out an action perpetrated by state bodies which breaches the individual’s private sphere. Such interference could be either outside the law or supported by a law which itself is unfair. Indeed, arbitrariness does not only involve aspects of unlawfulness but also contains elements of injustice, uncontrollability, unpredictability and unreasonableness.552 According to the Human Rights Committee, the introduction of the concept of arbitrariness in Article 17 (1) of the ICCP principally aims to ensure that even interference provided for by law is in accordance with the provisions, aims and objectives of the Covenant and is, in any event, reasonable in the given circumstances.553 With respect to the term ‘unlawful interference’, it refers to the fact that no interferences with private life, family, home and correspondence can take place except in cases established by law. This means that States can only authorize interference in accordance with the law which in turn must comply with the provisions, aims and objectives of

549 Council of Europe, Manual on human rights and the environment (2006) 5, ch II, Par. 21 550 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Par. 51; European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Par. 60 551 Art. 12 UNDHR, Art. 17 (1) ICCPR, Art. 11 (2) American Convention on Human Rights 552 Ludescher, Menschenrechte und indigene Völker (2004) 162; Nowak, CCPR Commentary (2005) 383 553 HRC, Toonen vs Australia (1994) no 488/1992, Par. 8.3; HRC, General Comment No. 16, The right to respect of privacy, family, home and correspondence and protection of honour and reputation (Art. 17) (1988), Par. 4

Substantive Rights

159

international human rights instrument such as the ICCPR.554 Particularly, interference by natural or legal persons with an individual’s privacy and home requires the authorization of the State based on the law. Since the environmental impact caused by the extraction of mineral resources could interfere with people’s life, what is required is a legal framework that governs the conditions under which States authorize extraction activities. Apart from the concepts of arbitrariness and unlawfulness, the configuration of the violation of the right to respect for private and family life and home requires the fulfilment of additional criteria in relation to environmental cases. In multiple decisions related to environmental issues, the European Court on Human Rights qualified the violation of the right to private and family life and home as an interference which gives rise to severe environmental pollution and whose detrimental impact may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to adversely affect their private and family life, without, however, seriously endangering their health.555 From this interpretation of the European Court arise two basic elements necessary for the configuration of the causal link between the consequences of environmental nuisance and the breach of the right to respect for private and family life and home. These elements are the direct impact of the environmental nuisance on the individual’s privacy, family and home and the severity of environmental pollution.556 Relating to the first element, the Court must determine if the interference has caused a direct impact on the applicant’s ‘private sphere’.557 In complaints over environmental issues, the Court is called on to determine if the impact on the applicant’s privacy, family and home is directly rooted in the emission of harmful substances.558 With respect to the second element, the Court must establish if the said environmental impact attains a certain minimum level of severity. Due to the relativity of the severity’s assessment, the European Court stressed the importance to take into account all circumstances of the case such as the intensity and duration of the nuisance, its physical or mental effects as well as the general context of the environment with the aim to effectively evaluate the 554 HRC, General Comment No. 16, The right to respect of privacy, family, home and correspondence and protection of honour and reputation (Art. 17) (1988), Par. 3 555 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Par. 51; European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Par. 60; European Court of Human Rights, Kyrtatos vs Greece App no 41666/98 (2003), Par. 52; European Court of Human Rights, Taskin and others vs Turkey App no 46117/99 (2004), Par. 113 556 Council of Europe, Manual on human rights and the environment (2006) 5, ch II (14) 557 European Court of Human Rights, Fadeyeva vs Russia App no 55723/00 (2005), Par. 68, 70 558 European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Par. 60; European Court of Human Rights, Tatar vs Romania App no 67021/01 (2009), Par. 85

160

The Link Between Human Rights and the Environment

severity of such impacts.559 Since the European Convention does not guarantee the right to a healthy environment, both elements allow the Court, on the one hand, to determine if Article 8 of the European Convention on Human Rights is applicable to claims involving environmental concerns.560 On the other hand, these elements establish a causal link which constitutes the basis for recognizing the inclusion of the right to be protected from severe environmental pollution within the protection scope of Article 8 of the European Convention on Human Rights.561

b.

Limitations of State’s Duties

States have the duty to refrain from arbitrary interference with an individual’s private and family life, home and correspondence as well as to protect individuals from unlawful interference or attacks by natural or legal persons with her or his private sphere. Nevertheless, this duty is not absolute. In accordance with the General Comment 16 on Article 17 of the ICCPR, interference is allowed provided that they are not arbitrary or unlawful. This means that even interference provided for by law should be in conformity with the provisions, aims and objectives of the ICCPR and must in any event, be reasonable in the circumstances.562 The European Convention on Human Rights goes a step further by introducing a limitation clause which allows restrictions on the right embodied in Article 8 (1).563 By virtue of Article 8 (2) of the European Convention on Human Rights, public authorities are allowed to interfere with the right to respect for private and family life, home and correspondence provided this interference is justified by law.564 With respect to environmental cases, decisions of public authorities which affect the environment and consequently the exercise of an individual’s right to respect for privacy family and home, must be in accordance with the criteria established in Paragraph 2 of Article 8 of the European Convention on Human Rights.565 559 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Par. 57; European Court of Human Rights, Fadeyeva vs Russia App no 55723/00 (2005), Par. 69, 70 560 Council of Europe, Manual on human rights and the environment (2006) 5, ch II (10) 561 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Par. 96 562 HRC, General Comment No 16 The right to respect of privacy, family, home and correspondence and protection of honor and reputation (Art. 17) (1988), Par. 4; HRC, Toonen vs Australia (1994) no 488/1992, Par. 8.3 563 Nowak, CCPR Commentary (2005) 381 (8) 564 Art. 8 European Convention on Human Rights 565 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Par. 98; Council of Europe, Manual on human rights and the environment (2006) 5, ch II (e)

Substantive Rights

161

The evaluation of conformity of an interference exercised by State bodies or third persons within the protection scope of an individual’s right to respect for privacy, family and home is founded on three criteria. First, any interference must be provided for by law. Relevant legislation related to state interference must be accessible and its effects foreseeable in such as a way as to ensure its effective implementation.566 Furthermore, such legislation must specify in detail the precise circumstances in which the interference is allowed.567 The conformity of public authorities’ decisions with the law strengthens the rule of law by preventing any arbitrary or unlawful interference with the right to respect for private and family life and home. However, it must be pointed out that not only the enactment but also the implementation of the legislation play a significant role in ensuring conformity. In the light of European case law relating to environmental issues, the main reason for the breach of Article 8 (1) was not the absence of legislation protecting the environment but rather the problem of enforcing such legislation.568 In the case of Lopez-Ostra, Regulation 6 of 1961 on activities classified as causing a nuisance and being unhealthy, noxious and dangerous (”the 1961 regulations”) required, as a precondition for the operation of a waste treatment plant, a licence from the municipal authorities. Nevertheless, the plant began operating without this license and without having followed the procedure for obtaining the licence.569 In this context, the lawfulness of interference is a key factor for the compliance of the duty to respect and protect individual’s private sphere. An additional parameter which allows the assessment of the legality of interference is the legitimate aim pursued by the decision by public authorities. The consistency of decisions made by State bodies and the achievement of the public interest constitutes a second criterion which justifies interference with the exercise of the right embodied in Article 8 (1) of the European Convention on Human Rights. Legitimate aims pursuant to the public interest are listed in Article 8 (2) of the European Convention on Human Rights and range from interests of public safety, for the protection of public order, health or morals, to the protection of rights and freedoms of others. With respect to environmental issues, the Court recognised in its case law that in today’s society, the protection 566 Council of Europe, Manual on human rights and the environment (2006) 5, ch II (21) 567 HRC, General Comment No 16 The right to respect of privacy, family, home and correspondence and protection of honor and reputation (Art. 17) (1988), Par. 8 568 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Pars. 16 – 22; European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Pars. 25 – 27; Council of Europe, Manual on human rights and the environment (2006) 5, ch II (21) 569 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Par. 8, 28 below

162

The Link Between Human Rights and the Environment

of the environment is an increasingly important consideration.570 Therefore, the preservation and conservation of the environment constitute a legitimate objective of public policy which justifies certain restrictions on the individual’s private sphere for the purpose of the protection of the ‘rights of others’. In particular, this applies to cases of planning policies.571 In case of Chapman vs the United Kingdom,572 the European Court asserted that the reasons given for the interference in planning procedures were primarily based on the environmental policy terms. Accordingly, the Court found that such measures taken by the State pursued the legitimate aim of protecting the rights of others by means of the preservation of the environment.573 On the other hand, individual’s privacy, family and home can be subject to interference by State bodies or third parties through environmental impact from industrial activities. In this respect, the Court assessed in its case law that in accordance with the Paragraph 2 of Article 8, such restrictions are justified, among other things, in the interest of the economic well-being of the country and for the protection of the rights and freedoms of others.574 In effect, in the case of Hatton,575 the Court stressed the importance to take into account economic interests of the country when developing environmental policy.576 With respect to the extraction of energy resources, the economic well-being of the country has a preponderant role in meeting national goals linked to economic growth and social development; therefore, this legitimate aim is to be taken into account at the time of shaping national policies. Another criterion for determining the legitimacy of interference is the proportionality of such interference in relation to the purpose to be achieved. By virtue of the European Convention, interferences with the right to respect for private and family life and home are considered legitimate not only because 570 European Court of Human Rights, Fredin vs Sweden App no 12033/86 (1991), Par. 48 571 Council of Europe, Manual on human rights and the environment (2006) 5, ch II (f); Birnie and others, International law & Environment (2009) 287; Boyle Alan, ‘Human Rights and the Environment: A Reassessment’ (2008) vol 18 Fordham Environmental Law Review 471 – 511 572 The case of Chapman relates to a claim before the European Court of Human Rights against the decision of United Kingdom’s authorities which dined a Gypsy family permission to site caravan on a land purchased by Sally Chapman for this purpose. 573 European Court of Human Rights, Chapman vs The United Kingdom App no 27238/95 (2001), Par. 82 574 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Par. 121; Council of Europe, Manual on human rights and the environment (2006) 5, ch II (e); Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 451 575 In case of Hatton, the petitioners alleged among others the violation of Article 8 of the European Convention since the State failed to reduce night flights at Heathrow airport. 576 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Par. 121

Substantive Rights

163

they are based on the law and aim at the public interest but also because they are proportionate to the legitimate aim pursued.577 The principle of proportionality, also called principle of reasonableness, is the third criterion which allows States to evaluate if the necessity of interference is based on a ‘pressing social need578’. According to the interpretation of the Human Rights Committee, the requirement of reasonableness implies that any interference with privacy must be proportional to the end sought and necessary in the circumstances of the given case.579 On this basis, the essential function of this principal is to weigh up the impact of the interference on individual’s private and family life and home and the legitimate aim pursued by the community as a whole.580 In order to strike a fair balance between competing interests, this principle must not only be incorporated into legislation but must also be taken into account by the administrative and judicial authorities at the moment when applying the law. Moreover, States are called on to ensure that the proceedings restricting individual’s rights are expeditious and motivated.581 In the light of the above analysis, the principal of proportionality sets limits to the wide margin of appreciation given to States at the time of pondering the significance of the interests in question. According by the European Court of Human Rights, the margin of appreciation given to States plays a significant role in the fulfilment of the positive duty of the State to take reasonable measures in order to comply with the right embodied in the Paragraph 1 of Article 8 as well as in ensuring that interferences adopted by a public authority are justified in accordance with the second paragraph of this Article.582 In this context, States have on the one hand a certain margin of appreciation to evaluate the necessity of interference with an individual’s private sphere. Accordingly, States are allowed to prioritize the public interests such as economic development or environmental protection, over individual’s rights.583 In cases related to the environment, States have the duty to regulate or mitigate environmental nuisances or risks but only insofar as important legal interests such as life, health, property, privacy, family and home, are the object of disproportionate interference. On this basis, national author577 European Court of Human Rights, Chapman vs The United Kingdom App no 27238/95 (2001), Par. 90 578 Schilling, Internationaler Menschenrechtsschutz (2010) 31 (73) 579 HRC, Toonen vs Australia (1994) no 488/1992, Par. 8.3 580 Ludescher, Menschenrechte und indigene Völker (2004) 162; Council of Europe, Manual on human rights and the environment (2006) 5, ch II (e) 581 HRC, General Comment No. 27, Freedom of movement (Art.12) (1999), Par. 15 582 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Par. 51; European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Par. 98 583 Birnie and others, International law & Environment (2009) 287; Schilling, Internationaler Menschenrechtsschutz (2010) 31 (73)

164

The Link Between Human Rights and the Environment

ities, especially politicians, enjoy a significant degree of discretion to give priority to economic development over the protection of the environment.584 Indeed, States are empowered to authorize the development of industrial activities that may cause environmental pollution by virtue of this discretion.585 Nevertheless, the limit to this power is the duty of the State to strike a fair balance between the magnitude of environmental effects caused by such activities and an individual’s right to respect for privacy, family and home.586 On the other hand, States also enjoy a wide margin of appreciation to determine the best alternatives on how to strike a fair balance between competing interests.587 The Court has held the opinion that States are empowered to develop their national policies and strategies since national authorities are in the best position to evaluate local needs and conditions as well as to decide what might be the adequate policy to be applied in a given situation.588 In this sense, national authorities are call to evaluate and rule all technical and social aspects relating to the environmental impact resulting from industrial activities. Based on this analysis, it can be concluded that the margin of appreciation grants States a wide room of manoeuvre to decide how best to meet their obligations from Article 8 of the European Convention on Human Rights may be fulfilled. In order to ensure compliance of the State decisions with Article 8 of the European Convention on Human Rights, the European Court of Human Rights is empowered to review decisions delivered by the State in the exercise of its power of discretion.589 In cases relating to State decisions affecting the environment, this supervisory jurisdiction has been carried out in the light of two particular aspects.590 The first aspect relates to the substantive merits of a government’s decision to ensure compatibility with Article 8 of the European Convention on Human Rights. As explained above, States are vested with a certain margin of appreciation to assess in a first step the necessity for carrying out interference as regards both the legislative framework and the particular measure of im-

584 Birnie and others, International law & Environment (2009) 288 585 Epiney and Scheyli, Umweltvölkerrecht (2000) 165 586 Birnie and others, International law & Environment (2009) 287; Schilling, Internationaler Menschenrechtsschutz (2010), 132 (292) 587 Council of Europe, Manual on human rights and the environment (2006) 5, ch II (e) 588 European Court of Human Rights, Powell and Rayner vs The United Kingdom App no 9310/ 81 (1990), Par. 44; European Court of Human Rights, Chapman vs The United Kingdom App no 27238/95 (2001), Par. 91; European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/97 (2003), Pars. 97 – 98 and 100 589 European Court of Human Rights, Vogt vs Germany App no 17851/91 (1995), Par. 52 (ii) and (iii) 590 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Par. 99

Substantive Rights

165

plementation.591 The scope of this margin of appreciation depends on the weight given to several factors such as the nature of the right in question, its importance for the individual and the nature of the activity restricted as well as the nature of the aim pursued by the restriction.592 To control if State has fairly weighted these factors, the European Court addressed the question, how the State has used its margin of discretion in each case. In cases concerning matters of general policy, on which opinions within a democratic society may reasonably differ widely, States are vested with a wide margin of appreciation to shape and implement social and economic policies as well to individually address measures taken in the framework of a general policy.593 By contrast, States are provided with a reduced margin of appreciation when ‘intimated’ aspects of the right protected by the Convention are likely to be subject to interference. For example, the scope of State’s margin of appreciation is considerably reduced in criminal law as a particular intimate aspect of individual’s private life (e. g. home) may be affected by measures taken by the State (e. g. search warrant). Regarding the scope of margin of appreciation granted to the States when taking policy decisions relating to environmental issues, the European Human Rights Court noticed that although environmental protection is a factor to be taken into consideration by States at the moment of exercising their margin of appreciation, States must be left the choice between widening or reducing this margin according to the interests and circumstances of the specific case.594 Apart from this substantive aspect, the European Court has dealt with the procedural aspect in its case law. The decision-making process to ensure a fair balance between competing interests is the second aspect that the European Court of Human Rights looks at regarding the margin of appreciation. Although Article 8 does not embody any explicit procedural requirement, according to the European Court, the decisionmaking process leading to the adoption of measures of interference must be fair to ensure due respect for the interests safeguarded by Article 8.595 Procedural aspects that are necessary to be considered in this analysis are the type of policy or decision involved, the extent to which the views of individuals were taken into 591 European Court of Human Rights, Buckley vs The United Kingdom App no 20348/92 (1996), Par. 74; Schilling, Internationaler Menschenrechtsschutz (2010), 31 – 32 (74) 592 European Court of Human Rights, Chapman vs The United Kingdom App no 27238/95 (2001), Par. 91; Schilling, Internationaler Menschenrechtsschutz (2010) 31 (73) 593 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Pars. 97, 103, 123 594 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Par. 122 595 European Court of Human Rights, McMichael vs The United Kingdom App no 16424/90 (1995), Par. 87; European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/97 (2003), Par. 72; European Court of Human Rights, Taskin and others vs Turkey App no 46117/99 (2004), Par. 118

166

The Link Between Human Rights and the Environment

account throughout the decision-making process and available procedural safeguards.596 In this particular point, the Court have however pointed out that decisions related to interferences are not limited to the availability of comprehensive and measurable data in relation to each and every aspect of the matter to be decided.597 Additionally, procedural aspects play a significant role especially in determining complex issues of environmental and economic policy. The European Court developed in its case law three steps to be observed by the State during the decision-making process which may lead to interference. First, States are called on to undertake appropriate investigations and studies in order to predict and evaluate in advance the effects of those activities which might damage the environment and infringe individuals’ rights. These studies enable States to strike a fair balance between the various conflicting interests at stake.598 Second, States must ensure the public access to the conclusions of such studies and to information since they enable members of the public to assess the threats to which they are exposed.599 Third, States have the duty to provide to individuals the possibility to appeal to the courts against any decision, act or omission in cases where they consider that their interests or their comments have not been given sufficient weight in the decision-making process.600 These three safeguards allow individuals to directly protect their interests from interference permitted in the public interest. c.

Extraction of Energy Resources in the Light of Article 8 of the European Convention on Human Rights

The extraction of natural resources is an activity which, depending on its type and scale, could give rise to serious environmental impact and for consequences to the violation of individual’s human rights. The European Court on Human Rights dealt in its case law with the consequences of mineral resource extraction 596 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Par. 104; European Court of Human Rights, Taskin and others vs Turkey App no 46117/99 (2004), Par. 118 597 European Court of Human Rights, Taskin and others vs Turkey App no 46117/99 (2004), Par. 118 598 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Par. 128; European Court of Human Rights, Taskin and others vs Turkey App no 46117/99 (2004), Par. 119 599 European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Par. 60; European Court of Human Rights, McGinley and Egan vs The United Kingdom App no 10/1997/794/995 – 996 (1998), Par. 97; European Court of Human Rights, Taskin and others vs Turkey App no 46117/99 (2004), Par. 119 600 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Par. 127; European Court of Human Rights, Taskin and others vs Turkey App no 46117/99 (2004), Par. 119

Substantive Rights

167

on the exercise of rights of the individual. In the case of Takin vs Turkey, Turkey granted a permit to operate a gold mine in Bergama (Izmir). The petitioners alleged that they were suffering the consequences derived from the development and operation of the Ovecik gold mine. In 1997, the Supreme Administrative Court concluded that the operating permit did not aim at the public interests since the use of sodium cyanide in the extraction activity seriously jeopardizes both the local ecosystem and human health and safety. Despite of this ruling by the Supreme Administrative Court, the government adopted through its Council of Ministers a ‘principle decision’ ratifying the gold mine development and operation.601 A further case dealing with the extraction of mineral resources is the case of Tatar vs Romania. The Company S.C. Aurul Baia Mare S.A. was engaged in activities involving the extraction of non-ferrous metal minerals in Baia Mare. Several Environmental Impact Assessments (EIAs) and reports of international organizations showed that such activity would exacerbate the existing environmental impact on the region and further jeopardize ground water quality. Despite of these facts, the operation continued until a serious environmental accident occurred in January 2000. Approximately 100,000 m3 of polluted water with toxic substances such as sodium cyanide were discharged directly into the Sasar, Lapus and Somesm rivers. Polluted water crossed the border into Romania and produced environmental harms, especially in the marine environment, in Hungary and in Serbia-Montenegro. Another socioeconomic impact of the accident was the loss of work places, especially in tourism and the fishing sector.602 With respect to the extraction of energy resources, a complaint concerning the construction of a hydropower dam was filed with the European Commission of Human Rights. The petitioners who belonged to a minority group called Lapps, claimed against the construction of a hydroelectric power station in the Alta Valley proposed by the Norwegian government. The Commission recognized that the consequences arising for the petitioners from the construction of the hydroelectric plant, constituted an interference with their private lives since they would have to move their herds and deer a considerable distance. Nonetheless, the Commission pointed out that the affected area represented a comparatively small area which would be lost for the petitioners’ purposes. Consequently, the Commission concluded that the necessity of the project justifies an interference with the right since the interest of the economic well-being of the country predominates over the interest of the petitioners.603 All these cases have 601 European Court of Human Rights, Taskin and others vs Turkey App no 46117/99 (2004), Pars. 11, 13, 26, 75, 112, 121 602 European Court of Human Rights, Tatar vs Romania App no 67021/01 (2009), Par. 9 – 11, 16, 25 – 28, 31 603 ECmHR, G and E vs Norway App no 9278/81 and 9415/81 (1983), Pars. 31 – 32, 36

168

The Link Between Human Rights and the Environment

significantly influenced the development of regulations on extraction activities and their consequences on the environment and people’s lives. The European Court of Human Rights has developed in its case law a special framework of positive duties to govern dangerous industrial activities such as the extraction of natural resources. In the light of Article 8 of the European Convention on Human Rights, States are called on to take all reasonable and appropriate measures to protect the rights of individuals to respect private lives and homes and, more generally, the right to enjoy a healthy and protected environment. This positive duty should be ensured by States even if there were no causal link between the environmental impact and the worsening of human health. In the case of Tatar, the Court stressed that despite of the absence of a causal link between the exposure to cyanide and respiratory diseases due to the lack of sufficient and convincing statistical data, the mere existence of a serious and substantial risks for health and well-being of the petitioners created an obligation for Romania to take all positive measure to protect the applicants’ rights.604 In addition, the European Court reaffirmed in its case law its point of view that local authorities are ideally placed to design and adopt the best environmental policies and preventive measures. On the basis of the precautionary principle that urges States not to delay the adoption of effective and proportionate measures to prevent the risk of serious and irreversible environmental damage in the absence of scientific or technical certainty, the Court furthermore called on public authorities to take preventive measures to reduce the risk from new industrial technologies which have never been used before.605 One of these preventive measures for example is the adoption of an especial legislative and administrative framework to govern special features of industrial activity, in particular those related to potential risk levels for the environment and human lives.606 In the Öneryildiz case, the Court specified the content and scope of such regulations by stating that these rules had to govern the licensing, set-up, operation, security and supervision of the activity as well as making it compulsory for all concerned to take practical measures ensuring the effective protection of citizens whose lives might be endangered by the inherent risks.607 Apart from these obligations, the European Court also developed three special safeguards that allow individuals to effectively assert their rights, viz. the undertaking of EIAs, the access to information relating to the risks and the access to justice. 604 European Court of Human Rights, Tatar vs Romania App no 67021/01, Par. 107 605 European Court of Human Rights, Hatton and others vs The United Kingdom App no 36022/ 97 (2003), Pars. 100 – 101; European Court of Human Rights, Tatar vs Romania App no 67021/01, Pars. 108 – 109 606 European Court of Human Rights, Tatar vs Romania App no 67021/01, Par. 88 607 European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 90; European Court of Human Rights, Tatar vs Romania App no 67021/01, Par. 88

Substantive Rights

169

These safeguards must be regarded by the State when allowing the development of activities that could threaten the environment and give rise to the violation of the right embodied in Article 8 of the European Convention on Human Rights. These measures will be covered in greater detail in Section II of this Chapter. d.

Conclusion

The human right to respect private and family life, home and correspondence has as its core objective the protection of the individual’s autonomy to freely develop his or her private and family life free from the interference of others. Since this right is a liberal right par excellence, it has been included in international human rights instruments such as the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the European Convention on Human Rights. With respect to the content and structure of this right, it is comprised of three constituent elements, viz. the protection of the individual’s development in the different domains that make up private life, the right of a person to build and develop personal relationships with other human beings and with the outside world and the protection of home and correspondence. Since the 1990s, the European Court of Human Rights has included environmental protection as an additional component of the right to respect for private and family life, home and correspondence. In effect, the European Court pointed out in its case law that the environment directly influences the quality of private life and the quiet enjoyment of the amenities of a private person’s home. From this right are derived both positive and negative duties upon the State. The protection of individuals from the arbitrary or unlawful interference committed by public authorities or third parties is the principal duty that the human right to respect private and family life, home and correspondence imposes on States. On the basis of this duty, States have on the one side the negative obligation to refrain from interferences with an individual’s privacy, family, home and correspondence but also to protect individuals from unlawful interference by third parties with the private sphere. On the other hand, States are called on to undertake positive measures to fulfill this right. The European Court of Human Rights has applied these general duties in cases relating to environmental issues. Accordingly, the Court determined in its case law that by virtue of Article 8 of the Convention, States have the duty to refrain from performing activities which directly result in environmental pollution and affect the enjoyment of privacy, family and home as well as to regulate and control the activities of state and private sectors. Moreover, States have the positive duty to take all necessary measures, especially the adoption of environmental legislation to face up to the negative effects from activities of the State and private industry.

170

The Link Between Human Rights and the Environment

Despite of the State’s efforts to develop environmental regulations, the European Court has held States responsible for the failure of their authorities to effectively implement environmental legislation. As observed, the right to respect private and family life, home and correspondence protects individuals from interferences by States or third parties; nevertheless, this protection is subject to certain limitations. In accordance with the second paragraph of Article 8 of the European Convention, States are allowed to restrict the right embodied in Article 8 (1) provided that this interference is justified under law. In order to prove the legality of a restriction, three criteria must be followed. First, the interference must be allowed by law. Second, the legality of interference must follow a legitimate aim. As a result, a decision by public authorities to interfere should aim at meeting the public interest. With respect to environmental issues, the European Court has recognised on the one hand that the protection of the environment is an objective of public policy which legitimizes restrictions on the individual’s private sphere for the purpose of protecting the ‘rights of others’. On the other hand, States may prioritize economic well-being of the country over environmental protection by authorizing industrial activities which have an environmental impact. In the particular case of the extraction of energy resources, the economic well-being of the country constitutes a legitimate aim which may justify restrictions on the private sphere in favour of national goals linked to economic growth and social development. The third criterion is the proportionality of the interference regarding the purpose to be achieved. Accordingly, States must strike a balance between the impact of the interference on individual’s private and family life and home and the legitimate aim pursued by the community as a whole. This capacity to balance the different interests pursued grant States a margin of discretion when assessing the need to restrict the private sphere of individuals and to determine the best alternatives in accordance with local needs and conditions. According to the European Court, national authorities are in the best position to evaluate and decide on all technical and social aspects relating to the environmental impact from industrial activities. With respect to the regulation of the extraction of natural resources in the light of Article 8 of the European Convention on Human Rights, the European Court on Human Rights examined the consequences of mineral resource extraction on the private sphere in the cases of Taskin vs Turkey and Tatar vs Romania. Within the framework of Article 8, the European Court developed special measures to regulate dangerous industrial activities such as the extraction of natural resources. According to the Court, States are called on to take all reasonable and appropriate measures to protect an individual’s private sphere from environmental impact caused by extraction activities even when there is no causal link between the environmental impact and the deterioration

Substantive Rights

171

of human health. In case of the implementation of new industrial technologies never applied before, public authorities are called on to take preventive measures to reduce the risk derived from implementation. Furthermore, the European Court developed three special safeguards to be followed by States when allowing the development of activities that could threaten the environment and give rise to the violation of the right embodied in Article 8 of the European Convention on Human Rights. These safeguards are the performance of EIAs, the access to information relating to the risks and access to justice. In the light of this analysis, the European Court of Human Rights has in its case law opened the way for the protection of the individual’s private sphere from environmental impact caused by industrial activities on the basis of Article 8 of the European Convention. In this context, the European Court has developed several measures to be undertaken and implemented by the State in order to comply with its obligations.

4.

The Right to Adequate Standards of Living

The right of adequate standards of living aims to satisfy a conglomerate of basic needs so that individuals can lead a life compatible with human dignity. This right is anchored in Article 25 (1) of the Universal Declaration on Human Rights and in Article 11 (1) of the ICESCR. According to the last provision, crucial standards of living include adequate food, clothing and housing. These rights are characterized by its progressive realization. This means that States have a wide margin of appreciation to choose the means for their effective realization. Notwithstanding this, in Article 2 (1), the ICESCR has laid down a framework to ensure their implementation. Another characteristic of this right is that the realization of other human rights strongly depends on the right to adequate living standards. For example, adequate shelter is linked without doubt to the protection of property and with access to natural resources. Because of the essential legal assets protected under the umbrella of the right to an adequate living standard, this right can only be limited under stringent requirements determined under Article 4 (1) of the ICESCR. When looking at the extraction of natural resources, the right to adequate food and adequate housing are particularly affected. Environmental pollution and conflicting access to land and resources constitute factors that threaten the effective enjoyment of the right to adequate living standards since individuals are on the one hand hampered in their ability to obtain their means of subsistence and on the other hand those resources which are necessary to meet their basic needs, are depleted or polluted. In the next Section, the right to adequate food and adequate housing will be analyzed in the light of natural resource extraction.

172 a.

The Link Between Human Rights and the Environment

The Right to Food

aa. Contents and Importance The international community stressed in Article 55 (1) (a) of the UN Charter the importance of promoting higher standards of living for the maintenance of peaceful and friendly relations among nations. As one of the essential elements of the right to adequate living standards, the human right to food creates conditions of stability and well-being and promotes the respect for human dignity and the enjoyment of other human rights. This indirect reference by the UN Charter to the right to food laid the foundations for its regulation at international level. In this context, the foundations of the normative content of the right to food can be found in Article 11 of the ICESCR, General Comment No. 12 elaborated by the CESCR and the concept of food security.608 According to the Rome Declaration on World Food Summit, food security means that ‘all people, at all times, have physical and economical access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life.’609 In this sense, food security requires that States ensure the realization of two rights, viz. the right to be free from hunger and the right to adequate food. Both rights are embodied in Article 11 of the ICESCR. The right to be free from hunger, anchored in the second paragraph of Article 11 ICESCR, guarantees access to everyone under the jurisdiction of a member state to minimum essential foods, sufficient, nutritionally adequate and safe, to ensure freedom from hunger.610 Due to the significance of a minimum daily nutritional intake for human survival, this right is recognized as fundamental under international law.611 Accordingly, States are called on to take all immediate and urgent steps in pursuance of its realization. The failure of the State to ensure the satisfaction, at the very least, of the minimum essential level required to be free from hunger implies a violation of the Covenant.612 On this basis, the right to be free from hunger ensures a minimal supply of food to prevent starvation. By contrast, the right to adequate food ensures the availability of and access to food in quality and in quantity consistent with human dignity. The right to adequate food is enshrined in the first paragraph of Article 11 of the ICESCR. The Committee on Economic, Social and Cultural Rights (CESCR) determined in its General Comment No. 12 that the right to adequate food is realized when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or has the means 608 609 610 611 612

Cotula, The Right to Food and Access to Natural Resources (2008), 14 Rome Declaration on World Food Summit (1996), Par. 1 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 14 Golay, The Right to Food and Access to Justice (2009), 13 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 17

Substantive Rights

173

for its procurement.613 Furthermore, the former Special Rapporteur on the right to food, Jean Ziegler, defined this right as regular, permanent and free access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belonged and which ensured a physical and mental, individual and collective, fulfilling and dignified life free from fear.614 From both concepts emerged two key elements for the realization of the right to adequate food: availability and accessibility of food.615 On the one hand, the availability to food refers to the quantity and quality of food sufficient to meet the dietary needs of individuals, free from adverse substances. In other words, availability can be defined as the entitlement either by feeding oneself directly from productive land or other natural resource or by procuring food from a wellfunctioning food production and supply chain.616 On the other hand, the effective realization of the right to food is also linked to the sustainable physical and economic access to adequate food. In this sense, physical accessibility implies that everyone including vulnerable groups, has access to food while economic accessibility refers to the personal and household cost associated with the acquisition of food as well as the means for its procurement, such as assets and income.617 Apart from these two core elements, in its General Comment No. 12, the CESCR developed five additional elements. The first element, adequacy, refers to the appropriateness of particular foods or diets for the purpose of Article 11 of the ICESCR and is determined by social, economic, cultural, climatic, ecological and other conditions. The second element, sustainability, is linked to the notion of food security and underlines the importance of the long-term availability and accessibility to food for present and future generations.618 Dietary needs are the third element developed by the Committee. It refers to the mix of nutrients contained by a diet as whole which ensure physical and mental growth, development and maintenance and physical activity.619 Absence of adverse substances is a further requirement for food safety and for a range of protective measures by both public and private means to prevent contamination of foodstuffs through adulteration and/or through bad environmental hygiene or inappropriate han-

613 614 615 616

CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 6 Ziegler, The right to food (2001), Par. 14 UNDP, Human Development Report 1994 (1994) CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Pars. 8, 12; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 343 617 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Pars. 8, 13 618 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 7 619 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 9

174

The Link Between Human Rights and the Environment

dling at different stages throughout the food chain.620 Finally, the last element takes into account those non-nutrient values (culture) and the important role of information for access to food supplies.621 These elements constitute decisive parameters that States may take into account for the effective realization of the right to food. In addition to these constituent elements, the content of the right to food also comprise obligations.622 bb. General Legal Obligations General obligations applicable to all economic, social and cultural rights are prescribed in Article 2 and 3 of the ICESCR. These are the positive obligation to take action and the ban on discrimination. The positive obligation to take action is enshrined in Article 2 (1) of the ICESCR and analyzed in depth in the Committee’s General Comment No. 3. ‘Article 2 (1) of the ICESCR: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means including particularly the adoption of legislative measures.’

From the wording of Article 2 (1) of the ICESCR, the Covenant imposes on States the obligation to adopt measures to progressively achieve the full realization of economic, social and cultural rights. In General Comment No. 3, the CESCR explained the scope of the term ‘progressive realization’. This concept reflects the recognition that the rights enshrined in the ICESCR cannot generally be achieved in a short period of time, contrary to those obligations established in the ICCPR whose compliance has an immediate effect. According to the CESCR, this recognition of the Covenant intents to reflect the different economic and social realities in the word and the difficulties faced by any country in ensuring the full realization of economic, social and cultural rights. However, the Committee also emphasized that this necessary flexibility should not be misinterpreted as depriving the obligation from its meaningful content.623 In this respect, the Covenant establishes in Article 2 (1) two important parameters to ensure the concretization of the obligation for taking action. On the one side, the expression ‘the maximum of its available resources’ limits the margin of discretion of the State in relation to the allocation of resources and prioritizes the 620 621 622 623

CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 10 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 11 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 344 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 9

Substantive Rights

175

realization of the rights prescribed in the ICESCR over other national goals. On the other hand, the expression ‘by all appropriate means’ grants States a wide discretion to choose those measures to be undertaken. However, the Covenant simultaneously sets a limit to this discretional power through the standard of ‘appropriateness’ under which such measures must be complied.624 In order to strengthen the effect of these two parameters, the Covenant imposes upon States in Article 2 (1) an additional obligation to move expeditiously and effectively as possible towards the realization of the right in question.625 Additionally, the Committee addressed the issue that States may adopt measures which could deliberately prevent the enjoyment of the rights under the Covenant (‘retrogressive measure’). In such cases, the Committee recommended that this measure be subject to the most careful consideration and be justified on the basis of the totally of the rights provided in the Covenant and in the context of the full use of maximum available resources.626 With respect to the right to food, the nature of the legal obligation, set out in Article 2 of the Covenant, compels States to adopt measures to progressively achieve the realization of the right to food. This means that States have a discretionary power to decide which appropriate measures should be taken and to allocate economic or other resources for achieving this purpose.627 Nevertheless, it must not be overlooked that this wide margin of decision is limited by the parameters listed above. Besides the obligation to take progressive steps, Article 2 (1) of the Covenant obliges States to adopt positive measures to provide everyone in their jurisdictions with the minimum essential food necessary to ensure freedom from hunger.628 This essential minimum obligation is mandatory irrespective of the State’s economic resources and level of development.629 In order not to fail in international responsibility, States have to the obligation to focus all their efforts and resources on satisfying the minimum essential requirements, even in times of severe resource constraint.630 An addi624 Cotula, The Right to Food and Access to Natural Resources (2008), 15 – 16 625 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 9 626 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 9 627 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 21 628 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 14; Eide, The right to food and the impact of liquid fuels (2008), 16 629 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 17; Cruz Luisa, ‘Responsible governance of land tenure: an essential factor for the realization of the right to food’ (2010) Land Tenure Working Paper 15, 14 630 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 17; CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 10

176

The Link Between Human Rights and the Environment

tional general legal obligation that has a determining influence in the realization of the right to food is the prohibition of discrimination. Important general legal obligations of the ICESCR are the prohibition of discrimination enshrined in Article 2 (2) and the duty to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights established under Article 3. Since discrimination is at the root of several human rights violations, especially of economic, social and cultural rights, the applicability of these obligations has a general and immediate character.631 Regarding the right to food, the CESCR analyzed in General Comment No. 12 the implication of these obligations on the realization of this right. According to the Committee, discrimination occurs when individuals are unable to access food or the means and entitlements for its procurement on the grounds of race, color, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status, with the purpose of nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights, among other things, the right to food.632 Consequently, one of the core obligations of the State is to eliminate the discrimination in access to food. In order to accomplish this goal, the prohibition of discrimination involves two sub-obligations, viz. the obligation to non-discrimination de jure and to non-discrimination de facto. The obligation to non-discrimination de jure relates to the adoption of legislative measures. Accordingly, States have the obligation to review domestic legislation with the aim to eliminate discriminatory laws, regulations and practices which may prevent or impede individuals or groups from the access to food or to the means and entitlements for its procurement.633 For example, legal provisions that hinder vulnerable groups to the access to economic and technical resources must be eliminated by States, since they constitute significant barriers to the right to food.634 Furthermore, States are called on to enact specific laws to combat discrimination. Unequal distribution of land has negative consequences on the access of vulnerable groups to means and resources to produce food. In this sense, true legal empowerment of these groups implies not only the strengthening of security of tenure through individual titling schemes combined with the codification of customary law but also the redistribution of land. The ICESCR recognizes in Article 11 (2) (b) the importance of agrarian reforms for the improvement of food production. The incorporation of agrarian reform 631 Cruz Luisa, ‘Responsible governance of land tenure: an essential factor for the realization of the right to food’ (2010) Land Tenure Working Paper 21 632 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 18 633 The Limburg Principles on the Implementation of the International Covenant on Economic social and cultural rights (1987), Par. 37; Golay, The Right to Food and Access to Justice (2009), 15 634 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 26

Substantive Rights

177

systems into domestic legislation leads to a more equitable access to land for the rural poor and the consolidation of food security.635 With respect to the second sub-obligation, non-discrimination de facto occurs when certain individuals or groups do not have an equal right to enjoy economic, social and cultural rights due to the lack of access to resources.636 In case of Yakye Axa, Paraguay failed to provide health services and minimum basic services, like access to drinking water and sanitation, or to provide conditions to make possible the enjoyment of the right to food. This situation puts indigenous peoples at a disadvantage vis-—-vis other groups in society and gives rise to the violation of other human rights such as the right to life and physical integrity.637 In this context, the obligation to non-discrimination de facto compels States to adopt positive measures to guarantee the equal realization of the right to food by discriminated individuals or groups.638 On this basis, it may be conclude that the realization of the right of vulnerable population groups and individuals to food is of high priority. Thus, States are called on to undertake steps to ensure this right even in cases where States face severe resource constraints, whether caused by a process of economic adjustment, economic recession, climatic conditions or other factors.639 cc. Specific Legal Obligations The right to food imposes upon States three levels of obligation: to respect, to protect and to fulfill. With respect to the first, States have the international obligation to respect the freedom of individuals to decide how to fulfill the right to food, either by own production or by obtaining food in the open market.640 The duty to respect constitutes a negative obligation which prohibits States to arbitrarily prevent or restrain certain individuals or groups from access to available food or to the means and entitlements for its procurement.641 Viola635 Carter M R, ‘Designing land and property rights reform for poverty alleviation and food security’ (2003) vol 2003/2 Land Reform, Land Settlement and Cooperatives 44 – 57; Quan Julian, ‘Land access in the 21st century : issues, trends, linkages and policy options’ (2006) Living Support Program Working Paper 24, 3; UNGA, The right to food (UN Doc A/65/281, 2010) Pars. 24, 27, 30 636 The Limburg Principles on the Implementation of the International Covenant on Economic social and cultural rights (1987), Par. 38 637 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Pars. 161 – 162, 164 – 165 and 167 638 Golay, The Right to Food and Access to Justice (2009), 15 639 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 28 640 Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard (2007) 167 641 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 15; Ziegler, Report of the Special Rapporteur on the right to food (2006), Par. 22; Cotula, The Right to Food and Access to Natural Resources (2008), 16; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 344

178

The Link Between Human Rights and the Environment

tions of the obligation to respect are ultimately based on the conduct of States that arbitrarily interfere with people’s effort to feed themselves. Examples of these interferences are, among other things, the prohibition to supply people with food, the destruction and contamination of food sources, the requisition of food without compensation and the arbitrary expropriation of agricultural land.642 In the case of the Ogoni, the African Commission of Human and Peoples Rights inferred that although the right to food is not explicitly protected under the African Charter of Human and Peoples Rights, this right emerges from the right to life (Article 4) in conjunction with the right to health (Article 16) and the right to economic, social and cultural development (Article 22). On this basis, the Commission found the Nigerian government responsible for the breach of its obligation to respect since Nigerian security forces and the State’s Oil Company carried out arbitrary actions leading to the destruction of food sources.643 As a result, the destruction and contamination of the environment by the State constitute a serious threat against the realization of the right to food as its production depends on the quality and quantity of natural resources such as soil and water. Within the framework of the obligation to respect, States are consequently obliged to adopt all necessary legal or other measures to eliminate any legal or practical barrier which may prevent individuals from access to food as well as to the means for its production.644 Beyond this obligation, States are also required to protect individuals and groups from interference by third parties. Through the obligation to protect, States are called on to ensure that third parties – private enterprises or individuals – do not adopt measures that could interfere or even deprive other individuals or groups from the enjoyment of the right to access to food or the means and entitlements for its procurement.645 Accordingly, States incur international responsibility for the failure to exercise due diligence in regulating and controlling activities carried out by non-State actors which interfere with the right to food.646 A measure of third parties that may interfere with the right to food is, for example, the destruction of natural resources important for agricultural activities. In the case of the Ogoni, the 642 Kälin and Künzli, Universeller Menschenrechtsschutz (2008), 344 643 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Pars. 64 – 66 644 Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard (2007) 167, 177 645 Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard (2007) 168; Golay, The Right to Food and Access to Justice (2009) 17 646 Inter-American Court of Human Rights, Vel‚squez-Rodr†guez vs Honduras (1988) Serie C no 4, Par. 172; Masstricht Guidelines on Violations of Economic, Social and Cultural Rights (Masstricht Guidelines) (1997), Par. 18; Cruz Luisa, ‘Responsible Governance of Land Tenure: an Essential Factor for the Realization of the Right to Food’ (2010) Land Tenure Working Paper 15, p 16

Substantive Rights

179

African Commission of Human and Peoples Rights concluded that the prohibition to allow private parties to destroy or contaminate food sources constitutes one of the minimum duties imposed by the right to food on States. On the basis of this argument, the Commission declared the international liability of the Nigerian government for an act of omission as it tolerated that private oil companies destroyed food sources of the Ogoni community.647 In order to prevent such violations, State must undertake positive measures. The obligation to protect people’s resource base for food calls for States to adopt measures to ensure that activities of the private business sector and individuals do not arbitrarily interfere with the access by other individuals or groups to adequate food.648 These measures demand, among other things, that States regulate the activities of non-State actors through the enactment and enforcement of laws.649 Furthermore, States have the duty to establish bodies for the investigation of arbitrary interferences of third parties and to provide effective legal remedies including the access to justice and adequate reparation if the right has been violated.650 An additional obligation is related to the prohibition of discrimination. Accordingly, States must adopt legislative and other measures to prevent that third parties deny, in particular individuals or groups, access to food on the basis of discrimination.651 In this respect, the protection duty imposes several mechanisms of regulation which prevent the negative consequence that third parties’ activities could have on the realization of the right to food. The obligation to fulfill the right to food is closely linked to the general obligation to adopt measures to progressively achieve the full enjoyment of the right to food contained in Article 2 (1) of the ICESCR. The CESCR developed in detailed the content of this obligation in the General Comment No. 12 and classified this obligation in two sub-obligations: the obligation to facilitate and the obligation to provide. The first sub-obligation obliged States to pro-actively adopt measures to promote access to and the utilization of productive resources or means which enables individuals to ensure their livelihood including food 647 The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 66; Cruz Luisa, ‘Responsible Governance of Land Tenure: an Essential Factor for the Realization of the Right to Food’ (2010) Land Tenure Working Paper 15, 16 648 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Pars. 15, 27 649 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 19; De Schutter, Building resilience: a human rights framework for world food and nutrition security (2008), Par. 34 650 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 32; Ziegler, Report of the Special Rapporteur on the right to food (2006), Par. 23 651 Ziegler, Report of the Special Rapporteur on the right to f1ood (2006), Par. 23; Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard (2007) 178

180

The Link Between Human Rights and the Environment

security.652 According to Article 11 (2) (a) of the ICESCR, States are compelled to take measures to improve methods of production, conservation and distribution of food; to disseminate knowledge about the principles of nutrition; and to develop or reform agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources. Just as the general obligation to take positive measures anchored in Article 2 (1) of the ICESCR, the obligation to facilitate is also subject to the principle of progressive realization. The second sub-obligation of the duty to fulfill calls for States to directly and immediately provide the right to adequate food to individuals or groups who are unable, for reasons beyond their control, to feed themselves by means at their disposal.653 This duty reinforces the obligation of the State to ensure the satisfaction of, at the very least, the minimum essential level required for freedom from hunger, particularly, in cases where individuals are not able to satisfy their basic needs either because of States’ interferences or because of situations of heightened vulnerability such as natural or humanitarian disasters.654 In this context, the Inter-American Court of Human Rights concluded in Yakye Axa case that the landlessness, resulting from the non-recognition by the Paraguayan government of the right of this community to their traditional land, put this group in situations of extreme vulnerability as well as precludes them from accessing their traditional means of subsistence. Therefore, the Court ordered Paraguay, among other things, to supply food in quantities, variety and quality that are sufficient for the members of the Community as a minimum condition for a decent life. Due to the vulnerability of certain groups of society, the CESCR expressly emphasized in the General Comment No. 12 that the obligation to fulfill (provide) subsists even in cases where the State confronts severe economic constrains.655 In summary, the obligation to fulfill seeks the realization of the right to food through the concretization of effective measures, in both dimensions. In addition to these three levels of obligations, the right to food also imposes upon States the duty to take joint and separate action to achieve the full realization of the right to adequate food and the right to be free from hunger at 652 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 15; Cotula, The Right to Food and Access to Natural Resources (2008) 16; Golay, The Right to Food and Access to Justice (2009) 18; Cruz Luisa, ‘Responsible Governance of Land Tenure: an Essential Factor for the Realization of the Right to Food’ (2010) Land Tenure Working Paper 15, 16 653 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 15; Cruz Luisa, ‘Responsible Governance of Land Tenure: an Essential Factor for the Realization of the Right to Food’ (2010) Land Tenure Working Paper 15, 16 654 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Pars. 14, 17; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 346 655 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 28

Substantive Rights

181

international level.656 The legal basis of this international obligation is Article 56 of the Charter of the United Nations as well as the specific provisions of Articles 11 (2), 2.1 and 23 of the Covenant and the Rome Declaration of the World Food Summit. From the provision listed above, the Special Rapporteur on the right to food, Olivier De Shutter, identified three obligations related to the right to food and international cooperation. First, States have the obligation to review and amend any policies that may have negative effects on the realization of the right to food in other countries.657 On the basis of this obligation, countries importing biofuels are compelled, for example, to adopt policies that aim to reduce the impact of the production of feedstock on the environment of the exporting countries. In 2009, the European Union adopted Directive 2009/28/EC on the promotion of the use of energy from renewable sources. This directive encourages EU members to take appropriate steps for the promotion of sustainability criteria for biofuels produced beyond the EU’s borders.658 Second, States have the obligation to protect the right to food by regulating and controlling the activities of transnational corporations at all levels of food production and distribution systems.659 Transnational corporations play a crucial role in the promotion of the effective realization of the right to food and the right to be free from hunger.660 As primarily responsible for the protection of human rights, States are called on to encourage both the development of corporate social responsibility in accordance with human rights within and beyond their jurisdictions as well as the commitment of all market players and civil society with realizing the right to food.661A further obligation of States is to cooperate internationally in order to contribute to the fulfilment of the right to food. A coordinated action of the international community is required to address the short-term impact of the increase of food prices as well as the structural causes leading to a food crisis at international level. In this context, these obligations and financial assistance constitutes key elements to shape an international en-

656 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 36 657 De Schutter, Building resilience: a human rights framework for world food and nutrition security (2008), Par. 25 658 European Parliament and Council, Council Directive 2009/28/EC of 23 April 2009 promoting the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (2009) OJ L140/16, Pars. 6, 65 – 66 659 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 36; De Schutter, Building resilience: a human rights framework for world food and nutrition security (2008), Par. 35 660 Art. 11(2)(b) of the ICESCR; HRC, The right to food (Resolution 7/14, 2008), Par. 13 661 UNGA, The right to food (A/RES/63/187, 2009), Par. 15; Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, Par. 4.3; Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008), Par. 27

182

The Link Between Human Rights and the Environment

vironment that complement and strengthen national efforts to ensure the realization of the right to food. dd. The Right to Food in the Context of Energy Resource Extraction Environmental pollution arising out of the exploitation of energy resources and the competing use of and access to land and natural resources for food and energy poses significant challenges to the effective realization of the right to food. Regarding the environment, the ability of individuals or groups to gain access to adequate food may be seriously compromised by the negative impact of environmental pollution on those resources which are crucial for food production such as soil and water. According to General Comment No. 12, food must be free from toxic and harmful substances.662 Consequently, States have the obligation to respect the right to food by abstaining from deliberately introducing toxic substances into the food chain as well as the obligation to prevent third parties from contaminating or destroying those natural resources necessary for food production.663 The improper extraction of non-renewable resources – fossil fuels and minerals – results in air, water and soil contamination. This, in turn, prevents individuals and groups from the realization of the right to food by themselves. The African Commission of Human and Peoples Rights examined in the case of the Ogoni people the harmful effects of oil extraction and production on the environment and the well-being of the population. The Commission concluded that the Nigerian State incurred an international responsibility since the Nigerian government tolerated as well as actively participated, in conjunction with the transnational Shell Oil Development Corporation, in the destruction and contamination of natural resources. This, in turn, gave rise to malnutrition and starvation of certain Ogoni communities.664 Similarly, the use of fertilizers or pesticides in the production of feedstock for the generation of renewable-energy (agrofuels) has a severe environmental impact on surface and ground water, soil productivity, biodiversity and ecological services. This topic will be addressed in more detail in the next Section. A further problematic relationship between natural resource extraction and the right to food is the conflicting use of and access to natural resources. ‘The right to food is, above all, the right to be able to feed oneself with dignity’.665 Under this premise, the realization of the right to food depends on the access to natural resources and means to ensure and produce one’s own subsistence including land, small-scale irrigation and seeds, credit, technology and 662 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 10 663 Ziegler, Report of the Special Rapporteur on the right to food (2006), Par. 22 664 The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Pars. 1, 9, 66 665 Ziegler, Report of the Special Rapporteur on the right to food (2008), Par. 18

Substantive Rights

183

local and regional markets.666 In effect, food security is linked to the equal access to food and the resources for its production rather than to the achievement of a certain level of agricultural production.667 On this basis, States are obliged to ensure access to agricultural land and other natural resources necessary for food production. Nevertheless, the increasing extraction of energy resources has given rise to shifts in the use of natural resources and even exacerbated the scarcity of some of them. One of the main factors for the food production is land. In the last decades, the acquisition of arable land has experienced a dramatic growth. Key drivers behind this tendency has been the increasing influence of investment and international trade on national policies regarding land, scarcity of natural resources, accelerated investments in the biofuels sector and the acquisition of large tracts of land with the aim to fill a gap in domestic food storage.668 Additional drivers which have exerted pressure on access to land have been the construction of dams for the generation of hydroelectric power and the exploitation of fossil fuels since the development of these energy projects require the expropriation of large tracts of land. According to the World Commission of Dams, large dam construction in the last century has caused the displacement of tens of millions of people in Asia, Africa and Latin America and has had a devastating impact on the livelihoods and socio-cultural foundation of these people.669 Given these facts, it is possible to deduce that the combination of all these factors has led to an intensive competition for resources. This, in turn, has in many cases resulted in arbitrary interference by States, either alone or in collaboration with third parties, with the access of vulnerable groups to natural resources for food production. These arbitrary interventions have often been based on discriminatory measures, lack of adequate compensation or due process, environmental contamination or have even been used as an eviction strategy.670 Vulnerable groups affected by arbitrary deprivation of the access to land and other natural resources are for example smallholders or agricultural workers, herders, artisanal fisher folk and members of indigenous communities. Access of vulnerable groups to essential resources for the production of food such as water, grazing or fishing grounds or forests plays a significant role in the realization of the right to food. Unfortunately, economic non-viability of small666 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 12; Ziegler, Report of the Special Rapporteur on the right to food (2008), Par. 18; Cotula, The Right to Food and Access to Natural Resources (2008) 21 667 Cruz Luisa, ‘Responsible Governance of Land Tenure: an Essential Factor for the Realization of the Right to Food’ (2010) Land Tenure Working Paper 15, 2 668 Cruz Luisa, ‘Responsible Governance of Land Tenure: an Essential Factor for the Realization of the Right to Food’ (2010) Land Tenure Working Paper 15, 4 669 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 102 – 103 670 Cotula, The Right to Food and Access to Natural Resources (2008) 25 – 26

184

The Link Between Human Rights and the Environment

scale farming, forced evictions in the absence of security of tenure and resource depletion have jeopardized this access and given rise to the marginalization of these groups.671 On the one hand, smallholders have little or no security of tenure over arable land. This has caused the reduction of investment in the land as well as the unsustainable use of soil and water resources.672 On the other hand, the access of fisher folk to fishing and of pastoralist to grazing grounds has been severely affected by the fencing off of land and resources on which their survival depend. The principal reason for this limitation is the replacement of customary rules of tenure by Western concepts of property.673 In case of indigenous people, traditional activities carried out by indigenous people such as hunting, fishing or farming, are strongly linked to the use and physical access to land and natural resources.674 Therefore, any interference with the access to their traditional means of subsistence places indigenous groups in a situation of greater vulnerability.675 The Inter-American Court of Human Rights clearly pointed out that the failure of States to recognize the rights to ancestral lands deprive indigenous peoples of vital resources for their survival which, in turn, have a negative impact on the effective enjoyment of the right to life and other human rights.676 In fact, the displacement of the members of indigenous communities from their lands makes it difficult for these groups to obtain food according to their ancestral traditions.677 This situation has led indigenous peoples to depend almost exclusively on States actions and be forced to live in a different way from their cultural patterns.678 In this context, States have an international obligation to respect, protect and fulfill the right to food through the creation of minimum

671 672 673 674

675 676

677 678

UNGA, The right to food (UN Doc A/65/281, 2010), Par. 1 UNGA, The right to food (UN Doc A/65/281, 2010), Par. 14, 16 – 21 UNGA, The right to food (UN Doc A/65/281, 2010), Par. 25 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 67; Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard (2007) 177; Cruz Luisa, ‘Responsible Governance of Land Tenure: an Essential Factor for the Realization of the Right to Food’ (2010) Land Tenure Working Paper 15, 7 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 13 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 167; Inter-American Court of Human Rights, Sawhoyamaxa Indigenous Community vs Paraguay (2006) Serie C no 146, Par. 168; Inter-American Court of Human Rights, X‚kmok K‚sek Indigenous Community vs Paraguay (2010) Serie C no 214, Par. 161 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 164 X‚kmok K‚sek Indigenous Community vs Paraguay (2010) Serie C no 214, Par. 225; CESCR, General Comment No 21, Right of everyone to take part in cultural life (Art. 15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights) (2009), Par. 38

Substantive Rights

185

living conditions compatible with the dignity of a human person, among them, the access to food and resources.679 Legal protection of access to, use and tenure of natural resources are key instruments towards the realization of the right to food.680 In the case of indigenous people, for example, the realization of the right to food depends both on the recognition of the traditional land of indigenous peoples and on the adoption of appropriate positive measures which ensure that indigenous peoples have access to food in accordance with their different manner of life and aspirations.681 The ICESCR acknowledges in its Article 11 (2) (a) the strong interrelationship between land tenure and the right to food and calls on States to undertake measures to improve the methods of production, conservation and distribution of food by, among other things, developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilization of natural resources. Furthermore, the FAO Voluntary Guidelines which supports States in the implementation of the right to food through national policy for different sectors recommends States to promote and protect the security of land tenure, especially by members of vulnerable groups, through legislation that protects the full and equal right to own land and other kinds of property.682 In this sense, the improvement of the legal protection of natural resources rights secures and increases the access of individuals and groups to natural resources.683 ee. Bionergy: A Challenge for the Realization of the Right to Food Over the past 50 years, non-renewable energy has been the motor of global economic growth. In fact, approximately 80 percent of global primary energy derives from fossil fuels and the demand of primary energy is expected to increase by almost 60 percent between 2002 and 2030.684 The growing demand for energy has been triggered by several factors such as economic and population growth in developing countries, the depletion of non-renewable re679 Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 162 680 Cotula, The Right to Food and Access to Natural Resources (2008) 23; Cruz Luisa, ‘Responsible Governance of Land Tenure: an Essential Factor for the Realization of the Right to Food’ (2010) Land Tenure Working Paper 15, 6 681 Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 163 682 Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, Par. 8.10 683 Cotula, The Right to Food and Access to Natural Resources (2008) 31 684 International Energy Agency, ‘World Energy Outlook 2004’ (OECD/EIA, 2004) 54 accessed 20 May 2011; James Meadowcrof, ‘Climate Change Governance’ (World Bank WPS4941, 2009) 4 accessed 24 May 2011

186

The Link Between Human Rights and the Environment

sources and the negative impact of climate change. With the aim to ensure energy security through the diversification of energy supplies and to strengthen the enhancement of resilience to climate change, the international community has developed policies and programs to encourage the generation of bioenergy.685 Bioenergy is obtain basically from the transformation of biomass, non-fossil material of biological origin including from forests and agricultural plants, wild or cultivated crops, into biofuels.686 This energy source can be categorized into three main categories, also called ‘generations’. This classification is basically linked to the raw material from which this kind of energy is derived. Firstgeneration biofuels encompass the so-called agrofuels. These types of fuels stem from agriculture and livestock products which are mainly extracted from food and feed crops as well as from animal and agricultural by-products.687 These products are transformed to fuels through well-established processing technologies.688 Second generation biofuels derived from the conversion of cellulosic materials (e. g. switchgrass and agricultural waste) by thermo-chemical or biochemical processes.689 Finally, third generation biofuels are planned to be obtained from ‘energy-designed’ feedstock and processed by more efficient technologies than to those in current use.690 According to the International Energy Agency (IEA), the demand for biofuels is projected in a conservative scenario to increase from 2.3 percent in 2015 to 3.2 percent in 2030 in the transport sector.691 Although the demand for biofuels represents a small component of total energy demand, biofuels production puts enormous pressure on the environment and on the natural resources from which the biomass is obtained. The following

685 Eide, The right to food and the impact of liquid fuels (2008) 6 686 Eide, The right to food and the impact of liquid fuels (2008) 11; Mauremootoo, Biofuels and Invasive Species: Exploring the links between biofuels production systems and invasive especies (2009) 18 687 ‘By products’ are ‘solid, liquid and gaseous residues and wastes derived from biomass processing activities’ in FAO Forestry Department, ‘Unified Bioenergy Terminology UBT’ (2004) accessed 20 May 2011 688 FAO Forestry Department, ‘Unified Bioenergy Terminology UBT’ (2004) accessed 20 May 2011; De Schutter, Building resilience: a human rights framework for world food and nutrition security (2008) 36 Par. 1; John Mauremootoo, Biofuels and Invasive Species: Exploring the links between biofuels production systems and invasive species (IUCN 2009) 18 689 John Mauremootoo, Biofuels and Invasive Species: Exploring the links between biofuels production systems and invasive species (IUCN 2009) 18 690 John Mauremootoo, Biofuels and Invasive Species: Exploring the links between biofuels production systems and invasive species (IUCN 2009) 18 691 International Energy Agency, World Energy Outlook 2007: China and India Insights (2007), 594

Substantive Rights

187

analysis will address the impact of agrofuel production on the realization of the right to food.692 The production of feedstock for agrofuels has had a serious impact on the realization of the right to food. On the one hand, food crops such as maize, sugar cane, soy, cassava palm oil and sorghum, are used for the production of agrofuels, especially of bioethanol. On the other hand, these crops provide about 30 percent of the average calorie consumption of people suffering from chronic hunger.693 The growing use of food crops for the production of biofuels has given rise to increased prices of such agricultural commodities on international markets. According to David Mitchell, Lead Economist at the Development Prospects Group of the World Bank, the IMF’s index of international traded food commodities prices had experienced an increase of 130 percent from 2002 to 2008 and 56 percent from 2007 to 2008. In fact, the 70 – 75 percent increase in food commodities prices in 2008 was the result of biofuels and the related consequences of low grain stocks, large land use shifts, speculative activity and export bans.694 The International Monetary Fund (IMF) determined that the demand for corn and some vegetable oils due to biofuels production was the second factor boosting food prices. For example, about 30 percent of the US corn crop production was diverted toward the production of corn-based ethanol during 2006 – 2007.695 In addition, shifts in land use due to the expansion of biofuels feedstock cultivation have contributed to the reduction of the area devoted to food crops. For instance, approximately 16 percent of the land used for rice production in the United States was redeployed for corn production. This, in turn, caused a decrease of rice production by 12 per cent from 2006 to 2007.696 Moreover, the growing demand for maize to be used in ethanol production has lead to a 16 percent decline in soybean acreage in the United States which contributed to a 75 percent rise in soybean prices between April 2007 and April 2008.697 All this facts led in 2008 to a global food price crisis. Exorbitant food prices negatively affect 692 These analysis was published by the author in L¦on Moreta Mar†a A., ‘Biofuels – AThreat to the Environment and Human Rights? An Analysis of the impact of the production of feedstock for agrofuels on the rights to water, land and food’ (2011) vol 4 issue 1 European Journal of Legal Studies 102 – 120, 115 – 118 693 De Schutter, Building resilience: a human rights framework for world food and nutrition security (2008), Par. 28 694 Mitchell Donald, ‘A Note on Rising Food Prices’ (2008) World Bank, Policy Research Working Paper 4682, 2 – 4, 17 695 International Monetary Fund, World Economic Outlook 2008 (2008) 97 696 Mittal Anuradha, ‘The 2008 Food Price Crisis: Rethinking Food Security Policies’ (2009) G24 Discussion Paper Series No 56, 8 697 Mitchell Donald, ‘A Note on Rising Food Prices’ (2008) World Bank, Policy Research Working Paper 4682, 10

188

The Link Between Human Rights and the Environment

the economic accessibility of food. Increasing personal or household costs due to food purchases jeopardize the realization of the right to food and the satisfaction of other basic needs. In addition, domestic and international policies which stimulate the expansion of biofuels production such as ambitious biofuel mandates, government subsidies and tariff protection in major advanced economies, have a negative impact on the exercise of the right to food and at the same time imply a breach of the States’ obligation to respect and protect not only at national but also at international level. A further consequence of biofuels is related to the competition over the use of natural resources for the cultivation of feedstock. Long-term profitability of biofuels in the global market requires a structural transformation of agriculture and land holdings. In other words, the promotion of large-scale plantations and an extreme degree of monoculture production constitute determining factors for achieving farming efficiency.698 In this context, a precondition to guarantee the large-scale production of biofuels is the concentration of large extensions of agricultural land. For this purpose, agribusiness companies, large landowners or State’s security forces force the farmers and other vulnerable groups to sale them their land or even evict them through whatever legal or arbitrary means.699 This, in turn, causes forced evictions and marginalization of small-farmers, indigenous peoples and women whose tenure is mainly based on customary law.700 Additionally, the cultivation process of biofuels feedstock generates a negative environmental impact on natural resources, the key to food production. On the one hand, mono-cropped commodity agricultural systems have given rise to soil erosion as well as exacerbated the release of GHG into the atmosphere as a result of biomass combustion or the chopping down of forests with the aim of obtaining more agricultural land.701 On the other hand, biofuels feedstock can also exert a significant pressure on water availability depending on the type of crop, water use, irrigation efficiency and geographical distribution of water. Furthermore, the use of pesticides and fertilizers may have negative effects not only on the surface water and ground water but also on soil productivity as well as ecological systems and services depending on water. In this context, the largescale cultivation of biofuels feedstock challenges the capacity of State to perform, in view of their international obligation to respect and protect the right to food. Landownership patterns, the phenomenon of landlessness, soil erosion, con698 Eide Asbjørn, The right to food and the impact of liquid fuels (2008) 17 – 18 699 Eide Asbjørn, The right to food and the impact of liquid fuels (2008) 16 700 De Schutter, Building resilience: a human rights framework for world food and nutrition security (2008), Par. 29; Eide Asbjørn, The right to food and the impact of liquid fuels (2008) 6, 11 701 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 34

Substantive Rights

189

tamination and depletion of water resources as well as the loss of biodiversity all constitute arbitrary interference of the State and/or third parties that prevent individuals from access to and the use of land and other natural resources for food production free from adverse substances. With the aim to prevent the negative effects of the development of biofuels on the realization of the right to food, policies and projects of agrofuels should be based on international recommendations, standards and guidelines. According to the Special Rapporteur on the Right to food, Olivier De Schutter, States are called on to carry out a multi-stakeholder assessment before authorizing new large-scale investment in agrofuels production. This assessment should take into account the implication of such investments on the effective exercise of the right to food, on socio-economic conditions of the affected populations, on land tenure concerns as well as on environmental impact.702 Furthermore, measures – blending mandates, subsidies and tax breaks – which foster speculation of food commodities by non-commercial investors and give rise to the emergence of artificial markets, should be reviewed by States on the basis of their obligation to respect in order to prevent negative effects on food prices.703 Additionally, standards and guidelines, developed by international organizations, provide crucial support for the cooperation between all relevant stakeholders in the decision-making process towards the development of a bioenergy project. For instance, the FAO Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security provides in Guideline 8 standards for the access to resources and assets that are important for people’s livelihood such as land, water, genetic resources for food and agriculture.704 All these tools contribute to ensure that the production of biofuels do not have a severe impact on the realization of the right to food. ff. Conclusion The human right to food constitutes one of the crucial preconditions for the realization of the right to adequate living standards. This right, anchored in Article 11 of the ICESCR, embodies two rights: the right to be free from hunger and the right to adequate food. The first right guarantees a minimal supply of food to prevent starvation while the second right ensures the availability of and access to food. With respect to the right to adequate food, its realization depends on availability and accessibility of food as well as five additional elements es702 De Schutter, Building resilience: a human rights framework for world food and nutrition security (2008), Par. 31 703 De Schutter, Building resilience: a human rights framework for world food and nutrition security (2008), Par. 31 704 Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, Par. 8.1 – 8.14

190

The Link Between Human Rights and the Environment

tablished by the CESCR. These elements are: adequacy, sustainability, dietary needs, free from adverse substances and non-nutrient values. Regarding the extraction of energy resources, the requirement that food should be free from adverse substances plays a significant role in preventing contamination of foodstuffs through adulteration, bad environmental hygiene or inappropriate handing at different stages throughout the food chain. In this sense, the right to food also imposes general and specific obligations upon States. General obligations applicable to the right to food are the positive obligation to take action (Article 2 of the ICESCR) and the prohibition of discrimination (Article 3 of the ICESCR). With respect to the first obligation, States are compelled to undertake measures to achieve the full realization of the right to food according to the economic and social realities of each country. Furthermore, this positive obligation ensures that individuals have access to a minimum essential food necessary to ensure their freedom from hunger regardless the economic resources and the level of development of the State. On the other hand, the prohibition of discrimination prevents individuals from being denied access to food or to the means and entitlements for its procurement on the grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status. In addition to these general obligations, the right to food imposes on States the obligations to respect, protect and fulfill. According to the obligation to respect, States are prohibited to arbitrarily prevent or restrain individuals or groups from the access to available food or to the means and entitlements for its procurement. Violations of the obligation to respect are, among others, the destruction and contamination of food sources as well as the expropriation of agricultural land. The obligation to protect requires that third parties do not interfere or even deprive other individuals or groups from the enjoyment of the right to access to food or the means and entitlements for its procurement. By implementing extraction activities, third parties, for example, can interfere with the right to food by destroying natural resources important for agricultural activities. Finally, the obligation to fulfill the right to food is closely linked to the general obligation to adopt measures to progressively achieve the full enjoyment of the right to food. The extraction of energy resources poses significant challenges to the effective realization of the right to food since extraction activities cause environmental pollution as well as a growing competition over access to land and natural resources for food. Regarding the environment, negative impact of environmental pollution on crucial resources for food production such as soil and water, compromise the ability of individuals or groups to gain access to adequate food. According to General Comment 12, food must be free from toxic and harmful substances. Therefore, States must abstain from deliberately introducing toxic substances into the food chain as well as prevent the contamination and de-

Substantive Rights

191

struction of those natural resources necessary for food production. A further problem area is the conflicting use of and access to natural resources. Increasing extraction of energy resources has given rise to shifts in the use of natural resources and to their scarcity. This has affected vulnerable groups in particular. In the light of this, States have the obligation to create adequate conditions which ensure access to and the use and tenure of natural resources necessary for the realization of the right to food. One activity which particularly affects the right to food, is the production of feedstock for biofuels. Global economic growth has been based on the extraction and consumption of fossil fuels. Aiming at the diversification of energy supplies and the reduction of the negative effects of climate change, the generation of bioenergy has been encouraged by international and national policies. Currently, bioenergy is mainly obtained from food and feed crops as well as from animal and agricultural by-products. This in turn exerts enormous pressure on the environment and on the natural resources from which biomass are obtained. Faced with this scenario, the realization of the right to food has been affected since food crops are used for the production of agrofuels such as bioethanol. Furthermore, the growing cultivation of biofuels feedstock has given rise to the reduction of the area for the production of food and to structural transformation of agriculture and land holdings. With respect to environmental issues, the production of agrofuels is based on mono-cropped commodity agricultural systems, the use of pesticides and the overexploitation of water resources: These factors have had serious effects on the environment such as soil erosion, depletion of water resources and the loss of biodiversity. In order to reduce or avoid the negative effects of the production of agrofuels, international organizations have developed standards and guidelines for a better management of natural resources important for food cultivation.

b.

The Right to Housing

aa. Scope of Contents The human right to adequate housing has its origins in the right to adequate living standards and plays a significant role in the realization of other human rights.705 This right has its roots in Article 25 (1) of the Universal Declaration on Human Rights and in Article 11 (1) of the ICESCR. With regard to the regional human rights conventions, the European Convention on Human Rights, American Convention on Human Rights and the African Charter of Human and 705 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 1; Golay and Özdem, The right to housing (2009) 5

192

The Link Between Human Rights and the Environment

Peoples Rights do not explicitly refer to the right of housing. In the case of Europe, the right to adequate housing and the right not to be forcibly evicted have been discussed under the provision related to the right to respect for private and family life, home and correspondence (Article 8 of the ECHR) and to the right to the peaceful enjoyment of property (Article 1 of Protocol No. 1).706 In case of Dulas¸ vs Turkey, the European Court of Human Rights concluded that the deliberate destruction of the petitioner’s home and property by State’s security forces and the expulsion from her village constituted, without a doubt, a particularly ‘grave and unjustified interference with the applicant’s right to respect for her private life, family life and home and with her peaceful enjoyment of her possessions.’707 Similarly, the Inter-American Court of Human Rights based the existence of the right not to be subject to forced evictions on the right of property (Article 21) in connection with the right to private life and home (Article 12 (2)). In case of the Ituango Massacres vs Colombia, the Inter-American Court of Human Rights drew the conclusion that the destruction of the petitioners’ home by paramilitary groups with the collaboration of the Colombian Army constituted a violation of the right to property and a grave, unjustified and abusive interference in their private life and home.708 Regarding the African human rights protection system, the African Commission of Human and Peoples Rights determined in the case of Ogoni that the right to housing is not explicitly recognized by the African Charter ; nevertheless, this right emerges from a combination of the provisions protecting the right to health (Article 16), the right to property (Article 14) and family protection (Article 18(1)). Since the destruction of the shelter carried out by the Nigerian Government interfered with the property, health and family life of the Ogonis, the right to housing read into the Charter has been violated.709 This international provisions and court rulings bear out the important role of the right to housing in the effective implementation of other human rights. Unfortunately, they established neither a definition nor the scope of the right to adequate housing. Given the lack of a definition in international human rights instruments, the Commission of Economic Social and Cultural Rights (CESCR) developed standards for interpretation of the right to housing. Bearing in mind that the 706 ECmHR, Cyprus vs Turkey App nos 6780/74 and 6950/75 (1976), Par. 209; European Court of Human Rights, Akdivar and others vs Turkey App no 21893/93 (1996), Par. 88; European Court of Human Rights, Dulas¸ vs Turkey App no 25801/94 (2001), Par. 57; European Court of Human Rights, Moldovan and others vs Romania App nos 41138/98 and 64320/01 (2005), Par. 105 707 European Court of Human Rights, Dulas¸ vs Turkey App no 25801/94 (2001), Pars. 58, 60 708 Inter-American Court of Human Rights, Ituango Massacres vs Colombia (2006) Serie C no 148, Par. 192, 194, 197, 199 709 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 60

Substantive Rights

193

conception of housing can vary depending on economic, cultural and social factors, the CESCR recommended in General Comment 4 to interpret the right to housing in a broad sense as the right to life somewhere in security, peace and dignity. Accordingly, the principal function of this human right is to ensure that all people irrespective of their income or economic resources have access to an adequate housing.710 Furthermore, the Committee urges to read the term ‘adequate housing’ in the light of the definition of ‘adequate shelter’ adopted by the Commission on Human Settlements in the Global Strategy for Shelter for the Year 2000.711 According to this definition, adequate shelter means ‘adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost.’712 On the basis of these recommendations, the Committee shaped the content of the right to housing. First, it elucidated the scope of the term ‘adequacy’ by pointing out that this term stresses a ‘number of factors which must be taken into account in determining whether particular forms of shelter can be considered ”adequate housing” for the purposes of the Covenant.’713 Given the number of social, economic, cultural, ecological and other factors that have a bearing on ‘adequacy’, the Committee identified seven essential criteria which must be satisfied in order to consider a shelter as adequate.714 These criteria are: – Legal security of tenure. This is a fundamental element towards the realization of the right to adequate housing since it provides a degree of security of tenure for everyone. Notwithstanding the variety of forms that tenure can take, this element guaranties legal protection against forced evictions, harassment and other threats.715 – Availability of services, materials facilities and infrastructure. According to this criterion, adequate housing must contain certain facilities important for health, security, comfort and nutrition. Furthermore, it ensures all beneficiaries of the right of have sustainable access to natural and common resources, safe drinking water, energy and others.716 – Affordability. This element refers to personal and household financial costs

710 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 7 711 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 7 712 Commission on Human Settlements, ‘Global Strategy for Shelter to the Year 2000’ A/43/8/ Add.1 (1988), Par. 5 713 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 714 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 715 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 (a); Paglione Giulia, ‘Right to Housing and Shelter’ in Encyclopedia of Human Rights I (2009) 434 716 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 (b)

194

–

– –

–

The Link Between Human Rights and the Environment

associated with housing which must be commensurate with the income levels of the population.717 Habitability. Adequate housing should provide the inhabitants with adequate space and physical safety by protecting them from natural phenomena, threats to health, structural hazards and disease vectors. By virtue of this element, the Committee recommends States to apply the Health Principles of Housing prepared by the World Health Organization (WHO) since inadequate or deficient housing constitutes a leading cause of disease, mortality and morbidity.718 Accessibility. This criterion ensures that adequate housing be made available to those entitled to it, especially vulnerable groups.719 Location. Adequate housing should be placed near employment options, health-care systems, schools and other social facilities. Similarly, housing should be built neither on polluted areas nor in immediate proximity to pollution sources that threaten the right to health of the inhabitants.720 Cultural adequacy. This element guaranties that the way housing is constructed, the building materials used and the policies supporting these reflects the cultural identity and diversity of housing.721

The analysis of CESCR has served as basis for the development of a new and broader definition related to the right to housing at UN level. For example, the Special Rapporteur on the right to housing, Kothari Millon, proposed a working definition of the right to housing by qualifying it as ‘the right of every woman, man, youth and child to gain and sustain a secure home and community in which to live in peace and dignity‘.722 This definition and the essential elements determined by the CESCR have contributed to determine the freedoms and entitlements contained within the scope of the right to adequate housing. Accordingly, the right to adequate housing ensures on the one hand entitlements such as security of tenure; housing, land and property restitution; equal and non-discriminatory access to adequate housing; and, participation in housingrelated decision-making at national and community level. On the other hand, this human right also encompasses the following freedoms: the right to be protected against forced evictions and demolitions of one’s home, the right to be free from arbitrary interference with one’s home and the right to choose one’s 717 718 719 720 721 722

CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 (c) CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 (d) CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 (e) CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 (f) CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 (g) Kothari Millon, Report on adequate housing as a component of the right to an adequate standard of living (2001), Par. 8

Substantive Rights

195

residence as well as the freedom of movement.723 These freedoms and entitlements constitute in turn the basis of the obligations of the State vis-a-vis the right of housing. bb. Obligations The right to housing, like the other economic, social and cultural rights, gives rise to general and specific obligations. The first group of obligations are basically rooted in Articles 2 and 3 of the ICESCR and include the positive obligation to take action and a prohibition of discrimination. By virtue of Article 2 (1), States have the positive obligation to adopt measures, to the maximum of their available resources, to progressively achieve the realization of the rights anchored in the Convention by appropriate means. With respect to the right of adequate housing, States are called on, in accordance with Article 2 (1) of ICESCR, to undertake steps towards the progressive realization of the right to adequate housing. The Convention recognizes the resource constraints of States and therefore grants them a wide margin of discretion to decide the most appropriate means of achieving the full realization of the right to housing.724 Nevertheless, States have the duty to demonstrate as a minimum that they are making every possible effort, within their available resources, to implement the right of housing.725 In addition, the Committee also determined certain immediate obligations. Accordingly, States are called on to immediately adopt legislative and other measures in order to provide legal security of tenure upon those persons and households lacking such protection, to prevent States from arbitrary interventions, to establish domestic legal remedies, to monitor the situation of housing within their jurisdiction as well as to encourage ‘self-help’ housing programs and policies.726 A further immediate obligation emerges from the principle of equality and non-discrimination. By virtue of Article 2 (2) and Article 3 of the ICESCR, the right to adequate housing applies to everyone without discrimination.727 In General Comment No. 4, the CESCR linked the problem of discrimination to the aspect of ‘accessibility’ as it stated that vulnerable groups should be given a degree of priority in 723 OHCHR, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 3 724 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 12; Commission on Human Settlements, ‘Global Strategy for Shelter to the Year 2000’ A/43/8/ Add.1 (1988), Par. 32 725 OHCHR, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 30 726 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Pars. 8 (a), 10 , 13, 17; Commission on Human Settlements, ‘Global Strategy for Shelter to the Year 2000’ A/43/8/Add.1 (1988), Pars. 66 – 67; OHCHR, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 7, 31 727 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 6

196

The Link Between Human Rights and the Environment

the housing sphere.728 Unfortunately, discrimination still has a negative impact on the enjoyment of the right to adequate housing since discriminatory provisions have been veiled in national laws, measures or policies.729 In this context, States are called on to give particular attention and due priority to those social groups living in unfavourable conditions in order to ensure their full and sustainable access to housing in an equal and non-discriminatory manner.730 For this purpose, States are urged to review those policies and legislation designed with the aim to benefit already advantaged social groups at the expenses of others, to protect individuals from discrimination by third parties with regard to access to adequate housing as well as to provide housing without discrimination.731Apart from these general obligations, States have three specific obligations. In the light of the right to housing, States have the obligation to respect, protect and fulfill. The following analysis will examine only general issues relating to these obligations. The obligation to respect compels State bodies to refrain from carrying out, sponsoring or tolerating any practice, policy or legal measure that could jeopardize the realization of the right to housing.732 Accordingly, States have on the one hand the negative duty to abstain from arbitrarily interfering with tenure and with the freedom to use those materials or resources available to satisfy individual, family, household or community housing needs.733 On the other hand, States have a positive duty to confer legal protection against forced evictions, harassment and other threats. A clear violation to the right to adequate housing occurs when governments arbitrarily evict or displace people from their land and interfere with the access to resources, especially if the land provides them housing and livelihood. By contrast, the obligation to protect urges States to prevent interference by third parties or non-state actors with the right to housing. In this sense, States are called on to adopt appropriate measures to protect dwellers from arbitrary evictions, to preclude further deprivations and to ensure access to legal remedies. Moreover, States have the obligation to ensure that dwellings meet certain quality re-

728 729 730 731

CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 (e) OHCHR, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 10 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 11 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 11; Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard (2007) 216 – 217 732 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 10; Leckie, ‘The Right to Housing’ in Eide and others (eds), Economic, Social and Cultural Rights: A Textbook (1995) 113 – 114 733 Leckie, ‘The Right to Housing’ in Eide and others (eds), Economic, Social and Cultural Rights: A Textbook (1995) 113 – 114

Substantive Rights

197

quirements and be protected from environmental degradation by third parties.734 Similarly, the obligation to fulfill implies the adoption of positive measures. Accordingly, States must undertake financial, legislative and other measures towards the realization of the right to adequate housing.735 The CESCR reaffirmed, for example, the necessity to develop a national shelter strategy to address the housing problems within a State’s jurisdiction.736 This strategy, proposed in the Global Strategy for Shelter, constitutes an action plan which specifies the goals to be achieved as well as resources available to meet them in the most effective manner.737 Particularly, the participation of private sector plays a significant role in the fulfilment of the right to adequate housing since the experience has shown that governments are unable to satisfy housing deficits. Therefore, the CESCR recommended States to adopt a mix of public and private sector measures with the aim to satisfy housing deficits.738 Apart from this, the obligation to fulfill guarantees the adoption of minimal measures in case of disasters such as the provision of emergency shelters.739 These three obligations ensure the realization of the right to adequate housing. Nevertheless, the effective compliance of States with them is negatively affected by the phenomenon of forced evictions. Therefore, the content and scope of these obligations will be dealt with in greater depth in the next Section. cc. Forced Evictions and the Extraction of Energy Resources A key element of the right to housing is the legal security of tenure. According to the General Comment No. 4, every person enjoys a certain degree of security of tenure which ensures legal protection against forced eviction, harassment and other threats.740 As a result, one of the components of the right to housing is the right to be protected from forced evictions.741 This right has been directly or

734 Leckie, ‘The Right to Housing’ in Eide and others (eds), Economic, Social and Cultural Rights: A Textbook (1995) 113 – 114; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 351 – 352 735 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 15; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 352 736 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 12 737 Commission on Human Settlements, ‘Global Strategy for Shelter to the Year 2000’ A/43/8/ Add.1 (1988), Pars. 31 – 32 738 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 14; Commission on Human Settlements, ‘Global Strategy for Shelter to the Year 2000’ A/43/8/ Add.1 (1988), Par. 20 739 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 352 740 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 (a) 741 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 63;

198

The Link Between Human Rights and the Environment

indirectly enshrined in several international742 and regional743 human rights instruments. Nevertheless, none of these international instruments gives a definition of a forced eviction. The CESCR in the General Comment No. 7 defines the term ‘forced eviction’, applicable in the context of the international human rights protection system, as ‘the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of and access to, appropriate forms of legal or other protection.’744 This definition encompasses three distinctive features which allow forced eviction to be distinguished from other forms of displacement such as internal displacement, mass exodus, refugee flows and population transfer.745 The first feature refers to the absence of will. Forced evictions are rooted in an involuntary removal of individuals or groups from their home and/or land. The second characteristic implies either arbitrary acts or omissions attributable to States. Accordingly, forced evictions are always based either on arbitrary measures undertaken by the State or on the failure of the State to prevent forced evictions carried out by third parties. It should be noted that the practice of forced evictions is often preceded by eviction orders, with or without a judicial background. The final feature is force or coercion. In cases of forced evictions, States often actively participate in the removal of people from their home. The use of force by the State or third parties has two significant implications, viz. the irreparable and effective elimination of access by the affected parties to housing and the movement of affected individuals or groups to other areas.746 For example, the destruction of housing of the citizens and obstruction of efforts undertaken by individuals or communities to rebuild homes constitute, according to the African Commission of Human and Peoples Rights, coercive acts that resulted in a violation of the right to adequate housing.747 On the basis of this

742 743

744 745 746 747

Paglione Giulia, ‘Right to Housing and Shelter’ in Encyclopedia of Human Rights I (2009) 435 Art. .11 (1) of the ICESCR; Art. 27 (3) of the Convention on the Rights of the Child; Art. 14 (2) (h) of the Convention on the Elimination of All Forms of Racial Discrimination; Art. 17 of the ICCPR; Art. 16 of the ILO 169 Art. 31 of the European Social Charter ; Art. 8 of the European Convention on Human Rights; Art. 1 of Protocol No. 1; Art. IX and XXIII of the American Declaration of the Rights and Duties of Man. The African Charter of Human and Peoples Rights does not contain any explicit provision in relation to the right of housing; however, the case law of the Commission indicates that right to housing derives from Articles 14, 16 and 18 (1) of the Charter. CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 3 OHCHR, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1,3 OHCHR, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 2 – 3; OHCHR, Forced Evictions and Human Rights (1996) Fact Sheet No 25, 3 – 4 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 61

Substantive Rights

199

analysis, it is possible to draw a distinction between forced evictions and other types of displacement. Forced evictions are characterized by an active participation of the State in the forced removal of people. By contrast, other instances of displacement occurs when people are forced to flee and leave their homes and lands for reasons of personal security or safety to avoid situations such as armed conflict, generalized violence, human rights abuses, natural or man-made disasters and /or development projects.748 Since the practice of forced evictions and other types of displacement affect the enjoyment of housing, it is important to analyse the roots and consequences of this phenomenon in relation to the extraction of energy resources. Development is one of the principal triggers of forced eviction and other forms of displacement.749 In fact, the implementation of development and infrastructure projects such as the construction of dams or other large-scale energy projects, have encouraged in several cases to carry out forced evictions in order to ensure access to land and resources. Three main reasons account for this. First, inequitable land ownership patterns and conflicts over land-use rights have opened the door for coercive measures whose aim is to physically displace people from their homes and lands.750 According to the African Commission of Human and Peoples Rights, the lack of ‘formal’ recognition of indigenous peoples’ territories and the lack of domestic legal mechanisms to acknowledge property rights constitute conflict triggers that exacerbate the forced evictions.751 Second, forced eviction is strongly linked to the implementation of development and infrastructure projects.752 In fact, the World Commission of Dams has recognized that inundation of reservoirs and the installation of project facilities and associated infrastructure inevitably lead to physical displacement.753 Third, the majority of large-scale projects, especially in 748 OHCHR, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 3; OHCHR, United Nations Commentary and Guidelines on Eviction and Resettlement (2009), 8 – 9 749 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 7; UN Office of the High Commissioner for Human Rights, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 6; Kothari Millon, Report on adequate housing as a component of the right to an adequate standard of living (2004) Par. 27 750 OHCHR, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 8; Kothari Millon, Report on adequate housing as a component of the right to an adequate standard of living (2007), Pars. 25 – 26 751 African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 187 752 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 7; OHCHR, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 6 753 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 103

200

The Link Between Human Rights and the Environment

the energy sector, are financed by international organizations. The CESCR therefore urged international agencies to scrupulously avoid the involvement in projects which may cause large-scale evictions or displacement of persons without the provision of appropriate protection and compensation.754 Nevertheless, in General Comment No. 7 the Committee drew attention to the fact that despite of the appeal made in General Comment No. 2, several development projects financed by international agencies have been carried out on the basis of forced evictions.755 In addition to these triggers, environmental impact caused by the exploitation natural resources is also responsible for displacement. The undertaking of extraction projects had caused environmental pollution and negatively affected the quantity and quality of natural resources. For instance, blocking of rivers to generate hydroelectric power has seriously impacted on ecosystems. Environmental impacts such as the loss of biodiversity, depletion of water resources and drought have affected people living near and far from dams.756 This ecological impact has given rise to so-called ‘livelihood displacement’. This term refers to the fact that although individuals or groups are not directly forced by the State or third parties to leave their home or land, the loss of livelihood and income resources as well as changes in access to and control over productive resources due to development projects have had negative consequences on the integrity and economic survival of these people. In response thereto, the people are forced to flee or leave their home and land. In the case of dams, resources available for land- and riverine-based production activities are strongly affected by the inundation of land and the alteration of riverine ecosystems, whether upstream or downstream. As a result, communities which depend on land and natural resources, lose access to their traditional means of livelihood.757 An example of the consequences of the construction of large dams on the environment and the realization of human rights is the Belo Monte hydroelectric power plant in Brazil. Upon its completion in 2015, Belo Monte will become the world‘s third large hydroelectric dam, behind China’s Three Gorges and Itaipu. Since 1970s, several plans have been developed to build the Belo Monte Dam. The initial plan aimed at a sequence of five dams and huge reservoirs on the Xingu River which would have generated 20,000 MW, displacing tens of thousands of people and flooding 754 CESCR, General Comment No 2, International technical assistance measures (Art. 22) (1990), Par. 6 755 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 17 756 World Commission on Dams, Dams and Development: A New Framework for DecisionMaking (2000) 102 757 World Commission on Dams, Dams and Development: A New Framework for DecisionMaking (2000) 103

Substantive Rights

201

18,000 square km including indigenous reservoirs in the process.758 In order to avoid flooding indigenous territories, Belo Monte was designed as a run-of-river hydropower which mostly depends on river flow.759 Even though this kind of power plant does not necessarily require stored water, Belo Monte will have two reservoirs: the Channel Reservoir and the Xingu River Reservoir. The formation of the Xingu River Reservoir will result on the one hand in flooding of forest. On the other hand, it will interrupt the fluctuation of the water level in Xingu River, thereby eliminating the habitat of pioneer formations.760 The drastic reduction in water flow volumes and the hydrological cycle along the River in the downstream region of the dam, known as Volta Grande of the Xingu River, will give rise to a severe alteration of the ecosystem.761 Since the stretch of Volta Grande is one of the most important areas in the lower Amazon basin due to the flora and fauna as well as its indigenous and riverine populations, the environmental impact of the formation of the reservoir will be disastrous for the livelihood of people living in this area.762 The loss of the river as a means of transport and a source of food will give rise to a livelihood displacement of the population living there. In November 2010, members of indigenous communities of the Xingu River Basin in Par‚ submitted a petition to the Inter-American Commission on Human Rights, alleging that their life and physical integrity was at risk due to the impact of the construction of the Belo Monte hydroelectric power plant. In April 2011, the Inter-American Commissions of Human Rights (IACmHR) granted precautionary measures for the members of indigenous communities. The Commission requested Brazil to suspend the licensing process for the project and stop any construction work until minimum conditions are met. The IACmHR required Brazil to conduct a consultation process in performance of its international obligations, to ensure the access of indigenous communities to the Project’s Social and Environmental Impact Study, to adopt measures to protect the life and physical integrity of members of indigenous communities in voluntary isolation, and to prevent the spread of diseases and epidemics among these communities. Unfortunately, the

758 ‘The Rights and Wrongs of Belo Monte’, The Economist (4 May 2013) 759 ‘The Rights and Wrongs of Belo Monte’, The Economist (4 May 2013) 760 De Andrade Cunha Denise and Valle Ferreira Leonardo, ‘Impacts of the Belo Monte Hydroelectric Dam Construction on Pioneer Vegetation Formations Along the Xingu River, Par‚ State, Brazil’ (2012) Vol. 35 (2) Brazilian Journal of Botany 159 – 167, 161 761 De Andrade Cunha Denise and Valle Ferreira Leonardo, ‘Impacts of the Belo Monte Hydroelectric Dam Construction on Pioneer Vegetation Formations Along the Xingu River, Par‚ State, Brazil’ (2012) Vol. 35 (2) Brazilian Journal of Botany 159 – 167, 161 762 De Andrade Cunha Denise and Valle Ferreira Leonardo, ‘Impacts of the Belo Monte Hydroelectric Dam Construction on Pioneer Vegetation Formations Along the Xingu River, Par‚ State, Brazil’ (2012) Vol. 35 (2) Brazilian Journal of Botany 159 – 167, 161

202

The Link Between Human Rights and the Environment

Brazilian government refused the request and the construction continued.763 This case shows that the extraction of energy resources and the development of large infrastructure projects can be expected to have a serious impact on people’s life and livelihood. Forced evictions have economic, social, psychological impact on the life of project-affected people and results in the breach of other human rights. In particular, the rights of vulnerable groups such as indigenous population are breached by the practice of forced evictions during the implementation of largescale development projects.764 Evicted persons suffer not only the loss of their homes and lands but are also deprived of their means of subsistence. The lack of access to land and natural resources causes economic marginalization and increases impoverishment. In the particular case of indigenous people, the dispossession of these peoples from their land and resources encroaches upon their economic, social and cultural development.765 As a result, the deprivation of land and resources force people to move away from the area to obtain new sources of subsistence.766 Unfortunately, the areas of resettlement do not often provide adequate conditions for the economic and social development of affected people. For example, the Inter-American Court of Human Rights pointed out the difficulties that members of the Yakye Axa Community faced to obtain food. The displacement of this Community from their lands made difficult for them to access to livelihood since the area where their temporary settlement was located, did not have appropriate conditions for cultivation or for practice of their traditional subsistence activities.767 Additionally, forced evictions and livelihood displacement dislocate people from their socio-cultural milieu and affects complex reciprocal relationships.768 763 IACmHR, Indigenous Communities of the Xingu River Basin, Par‚ State, Brazil (2011) PM 382/10 764 Stavenhagen, Human rights and indigenous issues (2003) 2; Kothari Millon, Report on adequate housing as a component of the right to an adequate standard of living (2004) Pars. 27, 39; UN-HABITAT and OHCHR, Indigenous people’s right to adequate housing: A global overview (United Nations Housing Rights Programme, Report No 7, 2005) 8 765 Stavenhagen, Human rights and indigenous issues (2003) 10; Anaya, Indigenous Peoples in International Law (2004) 149 766 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 63; UN Office of the High Commissioner for Human Rights, Forced Evictions and Human Rights (1996) Fact Sheet No 25, 5; Thiele Bret, ‘Housing Rights: Norms and Implementation’ in Encyclopedia of Human Rights I (2009) 439 767 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 164 768 UN Office of the High Commissioner for Human Rights, Forced Evictions and Human Rights (1996) Fact Sheet No 25, 5; Thiele Bret, ‘Housing Rights: Norms and Implementation’ in Encyclopedia of Human Rights I (2009) 439

Substantive Rights

203

In particular, the social and cultural life of indigenous peoples is affected through these measures since their culture, spiritual life and social interactions are linked to their land and access to their natural resources. Another significant negative effect of a forced eviction is the psychological trauma of being violently evicted. In the case of the Ogoni, the African Commission of Human and Peoples Rights acknowledged that forced evictions are extremely traumatic and cause psychological and emotional distress.769 Moreover, the European Court of Human Rights concluded in the case of Moldova vs Romania that the inhuman living conditions resulting from forced evictions had a detrimental effect on the applicants’ health and well-being besides causing considerable mental suffering, thus diminishing their human dignity and arousing in them feelings of humiliation and debasement.770 A further consequence of forced evictions is the violation of other human rights. Human rights are interdependent and interrelated. Thus, forced evictions infringe not only on the right to adequate housing but also other human rights such as the right to life, to respect for family and home, the right not to be subject to inhuman or degrading treatment, the right to property, the right to food, to water and the right to health.771 Indeed, the United Nations Commission on Human Rights even qualified forced evictions as gross violations of human rights. Regarding the right to life, it guarantees access to adequate living conditions to enable everyone to lead a life compatible with human dignity. Nevertheless, forced evictions have seriously compromised the enjoyment of the right to life since they create conditions such as homelessness that are incompatible with human dignity.772 According to the Human Rights Committee, homelessness can seriously affect the right to life, since it leads to health problems and even to death.773 In addition, the access to land and the right to property are also breached by the practice of forced evictions. The access to land and the respect of the right to peaceful enjoyment of possession are essential elements for the realization of the right to housing and other human rights.774 In 769 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 63 770 European Court of Human Rights, Moldovan and others vs Romania App nos 41138/98 and 64320/01 (2005), Par. 110 771 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 4; Golay and Özdem, The right to housing (2009) 5 772 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 164; African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 216, 285 773 Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: Canada’ CCPR/C/79/Add.105 (1999), Par. 12 774 Kothari Millon, Report on adequate housing as a component of the right to an adequate standard of living (2007) Par. 25

204

The Link Between Human Rights and the Environment

this sense, the deliberate destruction of homes and properties by State’s security forces or non-state actors, the denial of access to land and resources, the deprivation of livelihood and the arbitrary orders to relinquish their possessions constitute measures that oblige people to abandon their homes and lands and give rise to a clear violation of the right to property.775 In addition to the right to life and property, a human right strongly interrelated with the right to adequate housing is the right not to be subject to inhuman or degrading treatment. In the case of Dulas¸ vs Turkey, the European Court of Human Rights drew the conclusion that forced evictions and housing demolitions constitute a clear violation of the non-derogable prohibition to torture, inhuman or degrading treatment. The applicant alleged that she had been forcibly evicted from her house which had been burned in front of her so that she had been left destitute and without security.776 The Court stressed that the absolute prohibition of torture or inhuman or degrading treatment of punishment, enshrined in Article 3 of the European Convention on Human Rights, is one of the fundamental cornerstones of a democratic society. Moreover, the Court recalled that ill-treatment must attain a minimum level of severity in order to fall within the scope of Article 3. In order to establish this minimum, the Court set up several criteria to assess all the circumstances of the case. These criteria were the duration of the treatment, its physical and mental effects and, in some cases, the victim’s gender, age and state of health.777 Bearing in mind the manner in which the home of the applicant was destroyed and her personal circumstances, the Court considered that the suffering caused to the applicant by the acts of security forces were sufficient severe to be categorized as inhuman treatment within the meaning of Article 3 of the European Convention on Human Rights.778 Accordingly, States must take into account that a forced eviction could led to violation of the prohibition to torture, inhuman or degrading treatment which as rule is international customary law. Although forced evictions severely compromise the exercise of human rights, there are circumstances in which it may be necessary to limit the right not to be subject to forced evictions. According to General Comment No. 4, instances of forced evictions are prima facie incompatible with the requirements of the Covenant. Nevertheless, the Committee stressed at the same time that evictions carried out by force can be justified in exceptional circumstances, in accordance with the law and in con775 European Court of Human Rights, Ayder and others vs Turkey App no 23656/94 (2004), Par. 119; Inter-American Court of Human Rights, Ituango Massacres vs Colombia (2006) Serie C no 148, Par. 192 776 European Court of Human Rights, Dulas¸ vs Turkey App no 25801/94 (2001), Par. 50 777 European Court of Human Rights, Tekin vs Turkey App no 52/1997/836/1042 (1998), Par. 52; European Court of Human Rights, Dulas¸ vs Turkey App no 25801/94 (2001), Pars. 52 – 53 778 European Court of Human Rights, Dulas¸ vs Turkey App no 25801/94 (2001), Par. 55

Substantive Rights

205

formity with the relevant principles of international law.779 Accordingly, the right not to be subject to forced eviction can be constrained in the light of Article 4 of ICESCR so that any limitation imposed must be ‘determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’780 In order to establish the lawfulness, proportionality and reasonableness of an eviction, international law set up a four-part test.781 Before considering whether to carry out an eviction, States must first explore all feasible alternatives in consultation with the people affected, with the aim to minimize or even avoid the use of force.782 Second, in the event that an eviction is considered justified, it should be carried out in strict compliance of international human rights law and in accordance with the general principles of reasonableness and proportionality. This means that this particular interference is only allowed in cases envisaged by law and in accordance with the provisions, aims and objectives of the Covenant and should in any event be reasonable in the particular circumstances. Moreover, relevant legislation must specify in detail the exceptional circumstances that justify the eviction.783 Third, if the eviction complies with the preceding parts of the test, it should then be carried out on the basis of appropriate procedural protections and due process. The CESCR set up the procedural guarantees applicable to forced evictions, viz.: ‘(a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions and where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons car779 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 18; CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Pars. 1, 3 780 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 5 781 Thiele Bret, ‘Housing Rights: Norms and Implementation’ in Encyclopedia of Human Rights I (2009) 439 782 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 13; UN Office of the High Commissioner for Human Rights, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 5; Thiele Bret, ‘Housing Rights: Norms and Implementation’ in Encyclopedia of Human Rights I (2009) 439 783 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 18; HRC, General Comment No. 16, The right to respect of privacy, family, home and correspondence and protection of honour and reputation (Art. 17) (1988), Pars. 3,4,8; CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 14; Thiele Bret, ‘Housing Rights: Norms and Implementation’ in Encyclopedia of Human Rights I (2009) 439

206

The Link Between Human Rights and the Environment

rying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; (g) provision of legal remedies; and (h) provision where possible, of legal aid to persons who are in need of it to seek redress from the courts.’784

Finally, the fourth part of the test seeks to ensure that even a lawful eviction does not result in marginalization, homelessness or violation of other human rights. In the event that the affected are unable to provide for themselves, this part imposes upon States the obligation to take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land is available.785 In addition to this test, two additional safeguards protect indigenous peoples from forced evictions due to their vulnerable situation. On the basis of Article 16 of the Convention 169 ILO and 10 of the UNDRIP, indigenous peoples must not be forcibly evicted without their free, prior and informed consent and after agreement on just and fair compensation, or without the option to return to their land. This test and safeguards constitute important tools for the decision-making process and the implementation of evictions related to the extraction of natural resources. In addition to this test, international human rights instruments give special focus to the obligation of the State in relation to forced evictions. The obligations of the State in relation to forced evictions have their roots in Article 11 (1) of the ICESCR in conjunction with other relevant provisions. By virtue of Article 2 (1) of the ICESCR, the State has the positive duty to adopt legislative measures to promote the enjoyment of the rights enshrined under the Convention. In this sense, legislation against forced evictions constitutes an essential measure that States must perform for an effective human rights protection system as well as to strengthen the rule of law. Because of the crucial significance of this legislation, the CESCR laid down its possible scope and content in General Comment No. 7. Accordingly, legislation against forced evictions should both provide the greatest possible security of tenure to dwellers of house and land, and should also allow strict control over circumstances under which evictions are carried out. Moreover, the Committee compelled States to adopt legislative or other measures to prevent or even punish forced evictions by establishing the criminal liability of State agents or third parties for such practices carried out without appropriate safeguards. Finally, the Committee stressed that legislation against forced eviction should be conform to the Cov784 , General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 15; UN Office of the High Commissioner for Human Rights, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 5; Thiele Bret, ‘Housing Rights: Norms and Implementation’ in Encyclopedia of Human Rights I (2009) 439 785 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 16

Substantive Rights

207

enant and be applicable to State authorities and third parties.786 A further obligation is related to the non-discriminatory provisions of Article 2 (2) and 3 of the Covenant. According General Comment No, 7, vulnerable groups – women, children, youth, older persons and indigenous people, ethnic and other minorities – suffer disproportionately from the practice of forced eviction. In fact, the implementation of large-scale development projects has forced indigenous and other marginalized people to leave their home, land and possessions. As a result, States are called on to undertake appropriate measures to ensure that no form of discrimination is involved in carrying out forced evictions, such as the enactment of non-discriminatory laws against forced evictions or the control of practices that could involve discrimination during such evictions.787 In addition to these general obligations, specific duties are imposed upon the State in connection with forced evictions. The obligations to respect, protect and fulfill play an important role in ruling and monitoring forced eviction practices. By virtue of the obligation to respect, States are compelled to refrain from any measure that could jeopardize the realization of the right to housing. Forced evictions constitute a grave interference with this human right. In this sense, all State bodies have the negative obligation to refrain from arbitrary forced evictions as well as the positive duty to enact laws that rule forced evictions in accordance with international law and with the principles of reasonableness and proportionality.788 Moreover, States authorities must, on the basis of the obligation to respect, stop threats or arbitrary interference with the right not to be forcefully evicted without adequate protection.789 Similarly, States are called on to protect the enjoyment of the right to housing from the interference by third parties. The private sector may negatively affect the enjoyment of the right to adequate housing.790 On this basis, States have the primary responsibility for preventing arbitrary forced evictions by third parties through the enactment and enforcement of laws against such practices.791 Due to the importance of the realization of the right to adequate housing, the right not to be forcefully evicted without adequate protection is 786 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 9 787 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 10 788 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Pars. 8, 14; Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard (2007) 212 789 European Court of Human Rights, Moldovan and others vs Romania App nos 41138/98 and 64320/01 (2005), Par. 108 – 109 790 UN Office of the High Commissioner for Human Rights, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 536; Golay and Özdem, The right to housing (2009) 20 791 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 351 – 352

208

The Link Between Human Rights and the Environment

reinforced by Article 17 (1) of the ICCPR which recognizes, among other things, the right to be protected against ”arbitrary or unlawful interference” with one’s home.792 Consequently, the protection against forced evictions is dual-facetted. It constitutes both a civil right under the umbrella of the right to respect the home as well as a social, economic and cultural right. Finally, the duty of fulfill plays an essential role in responding to the negative consequence of forced evictions. According to General Comment No. 7, States have the immediate obligation to undertake all appropriate measures, to the maximum of their available resources, to guarantee that adequate alternative housing, resettlement or access to productive land is available when individuals affected by forced evictions are unable to provide housing for themselves.793 Consequently, the obligation to fulfill ensures that evictions do not result in the marginalization, homeless or violation of other human rights. In order not to incur in international responsibility, States must rule and control the development of large-scaled energy projects which may involve the practice of force evictions, on the basis of these three mandatory obligations. In addition thereto, several soft-law instruments and voluntary initiatives have been launched at international level to control the forced eviction practices. United Nations bodies, its subsidiary bodies and specialized agencies play a significant role in integrating human rights concerns with development activities. Bearing this in mind, the CESCR urged by virtue of Article 22 of the ICESCR all involved bodies to ensure that the rights contained in the Covenants are taken into consideration in each phase of a development project.794 The operationalization of this appeal has given way to the development of guidelines. Even though these instruments are not legally binding, they provide important support for the realization of the right to housing. In 1997, the Expert Seminar on the Practice of Forced Eviction developed and adopted the ‘Comprehensive Human Rights Guidelines on Development-based Displacement’. These Guidelines deal with the human rights implications of the practice of forced evictions linked with development-based displacement in urban and rural areas.795 In this sense, the Guidelines impose upon the State general and specific obligation in the effort to ensure the right to the integrity of the home and access to and protection of common property resources as well as the right to security of tenure against 792 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 8 793 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 16 794 CESCR, General Comment No 2, International technical assistance measures (Art. 22) (1990), Par. 8 (d) 795 Comprehensive Human Rights Guidelines on Development-based Displacement (1997), Par. 1

Substantive Rights

209

forced evictions. These obligations pursue, among other things, the maximum degree of effective protection against the practice of forced evictions, the prevention of homelessness, the adoption of appropriate measures of law and policy, the assessment of all possible alternatives to any act involving forced eviction and the provision of legal remedies. A further development to these Guidelines represents the ‘Basic Principles and Guidelines on Development-Based Evictions and Displacement’. These Guidelines, developed in 2007 at UN level, outline the obligation of the State prior to, during and after development-based evictions. Moreover, this instrument set up rigorous criteria under which evictions may be performed in exceptional circumstances, with full justification and in accordance with procedural guaranties.796 An interesting contribution of the Guidelines is the incorporation of the ‘right to resettlement’ which includes the right to alternative land of better or equal quality and housing that must satisfy the criteria for adequacy. On the basis of this right, the Guidelines lay down additional criteria with the aim to determine the lawfulness of resettlement.797 In addition to these guidelines, international finance and development organizations – the World Bank, the Organization for Economic Cooperation and Development, the InterAmerican Development Bank and the Asian Development Bank – have developed guidelines to address the problems from development-induced displacement. These guidelines seek to ensure that the population displaced by a project receives benefits from it in addition to limit the suffering from the severe economic, social and environmental problems associated with involuntary resettlement.798 It is important to note that these guidelines draw especial attention to resettlement due to it being a direct and immediate consequence of forced evictions. Resettlement is the movement of people from a place or home to another specific location which can be voluntary or involuntary.799 A trigger of involuntary resettlement is forced eviction. Since evictions may cause homelessness and the violation of human rights, States have the obligation to un796 Basic Principles and Guidelines on Development based Evictions and Displacement (2007), Par. 21, Kothari Millon, ‘United Nations Basic Principles and Guidelines on Development based Evictions and Displacement’ (Workshop on Shelter Security and Social Protection for the Urban Poor and the Migrants in Asia, At Ahmedabad – India, 11 – 13 February 2009), 797 Basic Principles and Guidelines on Development based Evictions and Displacement (2007), Pars. 16, 56 798 United Nations Subcommission on Prevention of Discrimination and Protection of Minorities, Guidelines on international events and forced evictions: Report of the SecretaryGeneral (1995), Pars. 15 – 16; Kothari Millon, Report on adequate housing as a component of the right to an adequate standard of living (2004) Par. 28 799 OHCHR, United Nations Commentary and Guidelines on Eviction and Resettlement (2009) 9

210

The Link Between Human Rights and the Environment

dertake all appropriate steps to assist people affected by resettlement.800 One of these possible measures is the development of resettlement plans. Essential requirements of these plans are to compensate displaced people for the losses at full replacement cost prior to the actual move; to assist them with the move and during the transition period in the resettlement site; and to assist in their efforts to improve upon their former living standards, income earning capacity and production levels, or at least to restore them.801 In addition to the duty of the State to adopt measures to ensure that resettlement is available, the European Court of Human Rights imposed in the case of Dog˘an vs Turkey an additional obligation. According to this ruling, a State’s authorities are obliged to establish conditions as well as provide the means which allow the petitioners to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country.802 Unfortunately, several resettlement programs have mainly focused on the process of physical relocation rather than on the economic and social development of the displaced people. This has resulted in the worsening of economic and social problems such as landlessness, joblessness, homelessness, marginalization, impoverishment, to name a few.803 dd. Conclusions Ensuring adequate housing also constitutes a precondition for the realization of the right to adequate living standards. This right is embodied in Article 25 (1) of the Universal Declaration on Human Rights and in Article 11 (1) of the ICESCR. Regional human rights conventions do not explicitly refer to the right of housing. However, in their case law, international human rights courts and commissions in Africa, America and Europe have recognized the existence of this right by linking it with other human rights embodied in their covenants. Despite the recognition of the right to adequate housing, these international provisions and court decisions do not provide a definition and content of this right. Due to this situation, the CESCR developed the content of the right to housing, thereby establishing that the principal function of this human right is to

800 CESCR, General Comment No 7, The right to adequate housing (Art. 11(1)): Forced evictions (1997), Par. 16 801 United Nations Subcommission on Prevention of Discrimination and Protection of Minorities, Guidelines on international events and forced evictions: Report of the SecretaryGeneral (1995), Par. 16 (b) 802 European Court of Human Rights, Dog˘an and others vs Turkey App nos 8803 – 8811/02, 8813/02 and 8815 – 8819/02 (2004), Par. 154 803 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 103

Substantive Rights

211

ensure everyone’s access to adequate housing. On the basis of this right, States have general and specific obligations. Regarding general obligations, States have on the one hand a positive obligation to undertake steps towards the progressive realization of the right to adequate housing. On the other hand, States are obliged to ensure access to adequate housing without discrimination. In addition, States have specific obligations. The obligation to respect compels State bodies to refrain from any practice, policy or legal measure liable to jeopardize the realization of the right to housing while the obligation to protect urges States to prevent interference by third parties or non-state actors with the right to housing. Similarly, the obligation to fulfill implies the adoption of financial, legislative and other measures which ensure the realization of the right to adequate housing. Aviolation of these obligations is arbitrary eviction or displacement of people from their land, especially in the context of the development of energy projects. Security of tenure is a key component of the right to adequate housing since it ensures legal protection against forced eviction, harassment and other threats. The right to be protected against forced evictions has been embodied in several international human rights instruments. Forced evictions means the forced removal of people from the place of their habitual residence. The development of energy or infrastructure projects and the environmental impact arising from the implementation of these projects are the most common causes of forced evictions. The consequences of forced evictions are economic, social or psychological impact on the life of project-affected people, the dislocation of people from their socio-cultural milieu and the breach of other human rights such as the right to life, to respect for family and home, the right not to be subject to inhuman or degrading treatment, the right to property, the right to food, to water and the right to health. Despite the effects of forced evictions on the exercise of human rights, there are cases where the right not to be subject to forced evictions can be subject to limitation provided that they are justified in the most exceptional circumstances, in accordance with the law and in conformity with the relevant principles of international law. In addition, the right to be protected against forced evictions imposes general and specific obligations on States. With regard to extraction activities, international financial and developmental organizations have developed guidelines to address the problems derived from development-induced displacement such as resettlements.

212

The Link Between Human Rights and the Environment

5.

The Right to Health

a.

Scope and Content

The right to health is an essential precondition for enhancing human dignity and well-being. The efforts of the international community to ensure health as a human right go back to the origins of the World Health Organization (WHO). Even before the emergence of the United Nations Declaration on Human Rights, the preamble of the 1946 Constitution of the WHO conceptualizes health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.’ On this basis, several international human rights instruments incorporated the right to health into their provisions. The United Nations Declaration on Human Rights states in Article 25: ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and his family including food, clothing, housing and medical care and necessary social services, (…)’. Due to the significant role of the right to health in the realization of economic, social and cultural rights, particularly of the right to adequate living standards, the ICESCR provide in Article 12 the most comprehensive approach to this right in international human rights law. With respect to regional human rights instruments, the right to health is enshrined in Article 16 of the African Charter of Human and Peoples Rights. By contrast, the American and European Convention on Human Rights do not explicitly recognize the right to health. However, both the Inter-American and European Court of Human Rights have guaranteed in their case law the realization of the right to health on the basis of other health-related rights. For example, in case of Lopez-Ostra vs Spain, the European Court of Human Rights came to the conclusion that serious environmental impact on human health constitutes a violation of the right to respect for private life, family and home enshrined in Article 8 of the European Convention on Human Rights.804 Additionally, the right to health is contained in Article 11 of the European Social Charta as well as in Article 10 and 16 of the Additional Protocol to the American Convention of Human Rights. Although the right to health has been recognized in numerous human rights instruments, they do not provide for the scope and contents of this human right. The ICESCR provides in Article 12 the most integral description of the right to health. On the basis of this Article, the CESCR developed in General Comment No. 14 the normative content and definition of this human right. In a first approach, the Committee identified the structural components of Article 12 of the ICESCR. The first component recognizes the right to health as ‘the right of 804 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Pars. 49, 51; Hunt Paul, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2003), Pars. 16, 18

Substantive Rights

213

everyone to the enjoyment of the highest attainable standard of physical and mental health’. This reference clearly integrates individual’s biological and socio-economic requirements as well as the State’s availability of resources to cover them.805 The second component, contained in Article 12 (2) of the ICESCR, provides a list of non-exhaustive examples of steps to be taken by States to achieve the full realization of the right to health.806 By virtue of the structure of Article 12, the right of everyone to the enjoyment of the highest attainable standard of physical and mental health can be characterized as an inclusive right that encompasses two rights, viz. the right to conditions and services conducive to leading a life in dignity and the right to adequate health care in case of illness.807 Accordingly, the right to health ensures that the States not only provide adequate health services, goods and facilities but also creates factors and conditions that ensure the highest possible standards of health for everyone in its jurisdiction.808 These factors and conditions were named by the CESCR as the underlying determinants for health. They play a significant role in the effective realization of the right to health since they contribute to the protection and promotion of the right to health beyond health services, goods and facilities.809 According to the Committee, these determinants are access to safe and potable water and adequate sanitation; an adequate supply of safe food; nutrition and housing; healthy occupational and environmental conditions; and access to health-related education and information including on sexual and reproductive health.810 Based on these factors, the CESCR defined the right to health as ‘a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health.’811 On this basis, the right to health should not be understood as the right to be healthy since States are not able to provide protection against every possible cause of human 805 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 9 806 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 7 807 Tobes, ‘The Right to Health’ in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 174; Hunt Paul, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2003), Par. 23; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 313 808 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 313 809 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 4; Tobes, ‘The Right to Health’ in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 169; OHCHR, The right to health (2008) Fact Sheet No 31, 3,6; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 313 810 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 9 811 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 9

214

The Link Between Human Rights and the Environment

ill health. Rather, this right grants individuals the freedom to control their own health and body and to be free from interference. Furthermore, it entitles individuals to a system of health protection which provides equality of opportunity for people to enjoy the highest attainable level of health.812 In addition, the Committee identified core elements on which the realization of the right to health depends. Essential elements of the right to health are guiding principles which allow for a precise application of this right in accordance with the conditions prevailing in a particular State. These principals are: availability, accessibility, acceptability and quality. With respect to the first element, availability, States are called on to provide functioning public health and health-care facilities, goods, services and programs including those underlying the determinants of health and do so in sufficient quantity. The Committee pointed out, however, that availability depends on several factors such as the State’s level of development.813 The second element, accessibility, ensures the access of everyone to health care services and underlying determinants without discrimination.814 This element has four overlapping dimensions. According to them, equal access to health must be ensured to all individuals, in particular to vulnerable and marginalized groups in the society.815 Furthermore, adequate access to health requires safe physical access to health care services as well as to the underlying determinants. In other words, the dimensions guarantee both access to health in remote regions and adequate access to buildings for persons with disabilities.816 Another dimension is economic accessibility which refers to the affordability of health services. This means that economic income should not pose a barrier to access to health.817 The last dimension, information accessibility, includes the right to seek, receive and impart information and ideas as long as these do not impair the right to the confindentiality of personal health data.818 The third essential element, acceptability, requires that heath services be in

812 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Pars. 8 – 9 813 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 12 (a) 814 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 12 (b) 815 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 12 (b) (i) 816 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 12 (b) (ii) 817 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 12 (b) (iii) 818 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 12 (b) (iv)

Substantive Rights

215

accordance with medical ethics and people’s cultural traditions.819 Finally, the fourth element, quality, ensures that health services follow scientifically and medically appropriate standards.820 All these essential elements of health bear out the economic, social and cultural nature of the right to health. While the economic and social elements protect individuals from economic and social injustices in relation to the right to health, the cultural character of these elements guarantees compatibility between available health services and the individual’s cultural background.821 In this sense, the essential elements of the right to health support its applicability according to the specific context of each State. b.

Obligations

The right to health imposes upon States the obligation to provide adequate health services, goods and facilities as well as to create factors and conditions that guarantee the highest possible standards of health for everyone in its jurisdiction.822 On this basis, the CESCR identified in General Comment No. 14 general and specific obligations related to the right to health. With respect to the general obligations, the right to health is, by virtue of Article 2 (1) of the ICESCR, subject to progressive realization in the same way as the other economic, social and cultural rights. According to the Committee, the progressive realization of the right to health is to be understood as the specific and continuing obligation of States to move as expeditiously and effectively as possible towards the full realization of Article 12 of the ICESCR.823 In order to strengthen the full enjoyment of the right to health, these obligations are complemented through those obligations of immediate character. These immediate obligations require that States guarantee the exercise of economic, social and cultural rights without discrimination of any kind under any circumstances and irrespective of their available resources (Article 2 (2)). Furthermore, States should undertake deliberate, concrete and targeted measures towards the full realization of the rights enshrined in the Covenant (Article 2 (1)).824 The scope of both obligations is discussed in detail below. 819 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 12 (c) 820 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 12 (d) 821 Tobes, ‘The Right to Health’ in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 170 822 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 313 823 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 31 824 General Comment No 14, The right to the highest attainable standard of health (Art. 12)

216

The Link Between Human Rights and the Environment

The obligation of the State to ensure the right to health must be exercised on the basis of two legally enforceable principles: equity and non-discrimination.825 Discrimination is both a cause and a consequence of ill health. On the one hand, poor health, physical and mental disability or contracting an infectious disease are a trigger of discrimination.826 On the other hand, discrimination gives rise to marginalization and impoverishment which makes people extremely vulnerable to ill health. In fact, there are diseases which affect almost exclusively poor and marginalized population living in rural areas and settlements where poverty is widespread, especially in developing countries.827 These so-called ‘neglected’ diseases are characterized as seriously disabling and life-threatening. Unfortunately, the treatment options for such diseases are inadequate or inexistent since they do not receive sufficient attention and funding due to their low mortality rate. Examples of these diseases are Chagas disease, dengue fever, malaria or tuberculosis.828Against this background, States have, by virtue of Articles 2 (2) and 3 of the ICESCR and Article 5 (e) (iv) of ICERD, the obligation to ensure access to health and to underlying determinants of health as well as the means and entitlements for their procurement without any discrimination. In addition, States are called on to eliminate and prohibit discrimination in access to health care services and underlying determinants of health through the adoption, modification or abrogation of legislation or the dissemination of information.829 Owing the significance of non-discrimination for the realization of the right to health, the Committee characterized in General Comment No. 14 the non-discriminatory access to health as an essential element for the realization of the right to health.830 Moreover, the Committee underlined the special obligation of the state ‘to provide those who do not have sufficient means with the necessary health insurance and health-care facilities and to prevent any discrimination on internationally prohibited grounds in the supply of health care and health services, especially with respect to the core obligations of the right to health.’831

825 826 827 828 829 830 831

(2000), Par. 31; Tobes, ‘The Right to Health’ in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 176 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 1 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 313 Inter-American Court of Human Rights, X‚kmok K‚sek Indigenous Community vs Paraguay (2010) Serie C no 214, Par. 203 Kindhauser, ‘Neglected diseases that disable millions: Ambitious initiatives tackle problems once though intractable’ in Kindhauser (ed), Global Defense against the Infectious Disease Threat (2003); OHCHR, The right to health (2008) Fact Sheet No 31, 8 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 18 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 12 (b) (i) General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 19

Substantive Rights

217

In this context, the principles of non-discrimination and equity set out core standards to guarantee the access of vulnerable people to health and to protect them from discriminative practices or measures by States or private actors. With respect to the immediate obligation of States to take positive measures towards the realization of the right to health, the CESCR corroborated in General Comment No. 3 that States have the core obligation to ensure the satisfaction of, at the very least, the minimum essential levels of each of the rights enunciated in the Covenant including essential primary health care.832 In fact, the Committee provided in General Comment No. 14 an illustrative catalogue of core obligations arising from Article 12 of the ICESCR in conjunction with contemporary instruments such as the Alma-Ata Declaration. These obligations include the obligation a) to ensure the right of access to health facilities, goods and services on a non-discriminatory basis; b) to ensure access to the minimum essential foods that are nutritionally adequate and safe, to ensure freedom from hunger to everyone; c) to ensure access to basic shelter, housing and sanitation and an adequate supply of safe and potable water; d) to provide essential drugs as defined from time to time in the WHO Action Program on Essential Drugs; and e) to ensure equitable distribution of all health facilities, goods and services.833 All these core obligations mentioned above underline the significance of the enjoyment of the right to adequate living standards for the realization of the right to heath. In other words, the protection of human health is strongly linked to essential components for life such as food, housing, drinking water and sanitation. In addition to this analysis, the Committee ratified its view on retrogressive measures. Accordingly, measures taken by the States to deliberately prevent the enjoyment of the right to health are, in principle, not permissible. However, States are allowed to take such measures provided that they have been adopted after a careful analysis of all alternatives and that they are duly justified on the basis of the totality of the rights provided for in the Covenant, allowing for the full use of the State’s available resources.834 Apart from the general obligations, States have also specific duties in relation to the right to health. Obligations of the State to ensure the attainment of the highest possible standards of health entails the negative obligation to refrain from actions (obligation to respect) as well as the positive obligation to protect individuals against acts of third parties (obligation to protect) and to provide or facilitate 832 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 10; UNGA, Right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2007), Par. 28 833 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 43 834 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 32

218

The Link Between Human Rights and the Environment

services (obligation to fulfill).835 In respect of the obligation to respect, States are called on to refrain from interfering directly or indirectly with the enjoyment of the right to health. The CESCR defined in General Comment No. 14 the content of the obligation to respect by establishing four categories.836 First, States are prohibited from ordering coercive diagnostic or therapeutic measures. Nevertheless, this ban can be lifted on the basis of the limitation clause in Article 4 of the ICESCR. Second, States authorities are obliged to refrain from obstructing or denying access to existing health facilities and even less on the basis of discriminatory practices. An example of this category is the duty of the State to respect traditional health care, healing practices and medicines. Third, States may also not pollute the environment through industrial waste from Stateowned facilities; to use and test nuclear, biological or chemical weapons if such testing implies the release of substances harmful to human health; and to limit access to health services as a punitive measure, for example during armed conflicts in violation of international humanitarian law. Fourth, States must refrain from interferences with the right to health in cases of armed conflicts and occupations.837 Despite the obligation to respect, States are allowed on grounds of protecting public health to limit the exercise of the right to health.838 The limitation clause of Article 4 of the ICESCR gives way to such restrictions under certain conditions. Accordingly, these interventions must be ‘in accordance with the law including international human rights standards, compatible with the nature of the rights protected by the Covenant, in the interest of legitimate aims pursued and strictly necessary for the promotion of the general welfare in a democratic society.’839 Additionally, such limitations must be proportional. This means that the least restrictive alternative must be adopted where several types of limitations are available. Finally, the Committee pointed out that such limitations on grounds of protecting public health should be of limited duration and subject to review.840 An illustration of this limitation is those mandatory medical treatments which may be conducted without consent only in cases determined by the law and insofar as such treatment is propor835 Tobes, ‘The Right to Health’ in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 179 836 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Pars. 33 – 34; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 314 837 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 34; Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 314 – 315 838 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 28 839 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 28 840 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 29

Substantive Rights

219

tionate to the achievement of a legitimate aim such as the protection of the health of third parties in the event of infectious diseases.841 By means of all these preconditions, the Covenant ensures that the limitations to the obligation to respect strengthen the ability of the right to health rather than use it as a justification for arbitrary interferences. In addition, States have the obligation to protect and the obligation to fulfill. States are called on to protect the realization of the right to health against arbitrary interference by third parties. On the one hand, this duty requires that States take legal actions against arbitrary interference with the right to health by a third party.842 On the other hand, States are called on to undertake legislative and other measures to prevent third parties from interfering with the enjoyment of this right.843 According to General Comment No. 14, this measures should ensure non-discriminatory access to private health-care facilities; the elimination of private discrimination against patients, especially those with disabilities; the observance of essential elements of the right to health in the provision of private health services; the prevention of traditional practices and costumes incompatible with the right to health such as female genital mutilation, food taboos, among others; healthy working conditions in private-sector workplaces through the establishment of minimum provisions ruling, for example, the exposure to hazardous emissions or necessary protective measures (Article 7 (b) of the ICESCR); and the prevention and elimination of environmental impact generated by third parties that seriously put at risk people’s health.844 All these measures, recommended by the CESCR, constitute important legal basis for the drafting and enactment of health legislation. A further obligation which strives for the effective concretization of the right to health is the obligation to fulfill. The obligation to fulfill compels States to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full enjoyment of the right to health.845 Taking into account the availability of State’s resources, these measures are to be progressively achieved; nevertheless, States must ensure certain minimum standards of health care in order not to incur an international liability.846 According to the object and purpose of such 841 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 314 – 315 842 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 317 843 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 17; Tobes, ‘The Right to Health’ in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 180 844 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 35 845 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 17 846 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 318 – 319

220

The Link Between Human Rights and the Environment

measures, the CESCR categorized the obligation to fulfill in three categories: the duty to facilitate, to provide and to promote.847 The first category, facilitate, requires that States take positive steps that enable and assist individuals to enjoy the right to health. On the other hand, the obligation to fulfill means that States ensure the right to health when individuals or communities are unable, for reasons beyond their control, to realize that right themselves by the means at their disposal. Finally, the duty to fulfill, in the sense of promotion, calls for States to undertake actions that create, maintain and restore the health of the population.848 On the basis of this framework, States have the obligation to fulfill the right to health by granting sufficient recognition to the right to health in the national political and legal systems and by adopting a national health policy with a detailed plan for its concretization. Moreover, States are compelled to ensure the provision of health care and equal access to the underlying determinants of health for the entire population without discrimination. Additionally, the right to health is closely linked to healthy natural and workplace environments. In order to fulfill the right to health, States are called on to formulate and implement national policies to reduce and eliminate environmental pollution as well as to minimize the risk of occupational accidents and diseases.849 Finally, an important obligation of the State, identified by the Inter-American Court of Human Rights, is to regulate and monitor existing health care services. This last obligation guarantees that health services comply with those elements essential for the realization of the right to health.850 Once the duties of the State have been identified and described, it is possible to analyze the implications of their violation on the exercise of the right to health. Both general and specific obligations under Article 12 of the ICESCR can be infringed through actions or omissions perpetrated by States. In order to determine a violation of the general obligations relating to the right to health, the CESCR proposed in General Comment No. 14 to make a difference between inability and unwillingness of a State to comply with the obligations in Article 12 of the ICESCR. By virtue of Article 12 (1) in conjunction with Article 2 (1) of the ICESCR, States have the obligation to take the necessary measures to the maximum of their available resources. The availability of resources constitutes a cornerstone in the realization of the right to health. In effect, the unwillingness of 847 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 33 848 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 37 849 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 36 850 Inter-American Court of Human Rights, Alb‚n Cornejo et al vs Ecuador (2007) Serie C no 171, Par. 121

Substantive Rights

221

States to use the maximum of their available resources necessary for the adoption of measures to realize this right could be a trigger for the violation of this right. On the other hand, resource constraints may represent a real impediment which keeps States from fully complying with their obligations. The CESCR, however, emphasized that the lack of resources cannot under any circumstances be used as a justification for non-compliance with minimum core obligations due to their non-derogable character.851 In addition, the Committee identified those cases under which the specific obligations of the right to health are breached. Violations of the right to health may occur either through a direct action of State or non-State entities or through the failure of States to adopt the necessary measures.852 On the one hand, the obligation of the State to respect can be breached through acts of commission. These acts include those State actions, policies or laws which breach the standards set out in Article 12 of the ICESCR as well as the adoption of retrogressive measures incompatible with the core regarding their right-to-health obligations.853 For example, the denial of adequate access to health through the repeal or suspension of legislation and the support of activities detrimental to the health of individuals constitute serious infringements to the obligation to respect.854 In the Ogoni case, the African Commission of Human and Peoples Rights held the Nigerian government responsible for the violation of its duty to respect since it facilitated and actively participated in extraction operations in Ogoniland which resulted in environmental pollution and in serious and widespread health problems among members of this community.855 On the other hand, violations through acts of omission occur when States breach their specific obligation either to fulfill or to protect. States infringe their obligation to fulfill by failing to take appropriate steps towards the realization of the right to health. This occurs, for example, when States do not enact and enforce relevant national health policies and laws designed to ensure the right to health for everyone without discrimination.856 By 851 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 47 852 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 48 853 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Pars. 48, 50 854 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 48 855 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 84 856 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Pars. 49, 52

222

The Link Between Human Rights and the Environment

contrast, States violate their obligation to protect when they fail to take all necessary measures within their jurisdiction to safeguard the right of individuals to health from infringements committed by third parties. Arbitrary interferences by third parties with the right to health often arise from the failure of States to effectively regulate and monitor private sector activities.857 In particular, the inability of States to prevent and control environmental pollution and ecological degradation by the private sector has had serious consequences on the enjoyment of the right to health. In the case of Ogoni, the Nigerian government was found responsible for the violation of the right to health as it failed to regulate and monitor environmental pollution caused by extraction activities by the Shell oil consortium.858 Finally, States have the international obligation to respect, protect and fulfill the right to health in other countries as well. In accordance with General Comment No. 3, States are called on to undertake measures individually or through international assistance and cooperation towards the full realization of the rights recognized in the ICESCR including the right to health.859 Particularly, the role of international cooperation and the commitment of States to ensure the enjoyment of the right to health have been confirmed in specific provisions of international instruments such as Article 56 of the Charter of the United Nations, Articles 12, 2.1, 22 and 23 of the ICESCR and the Alma-Ata Declaration on primary health care.860 In this context, States have among others the international obligation to prevent third parties from violating the right to health in other countries by exercising influence on these third parties through legal or political means.861 This plays a significant role in the extraction of natural resources since States where transnational corporations are domiciled, could be internationally obliged to call those enterprises to account over serious violations to the right to health. According to the CESCR, States are also urged to take into account its legal obligations regarding the right to health and to prevent an adverse effect on this right when negotiating and adopting bilateral and multilateral agreements with other States, international organizations or other enti-

857 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 51 858 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 84 859 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 13 860 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 38 861 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 39

Substantive Rights

223

ties, such as multinational corporations.862 This means that the right to health must be a focus of attention when negotiating investment agreements between international corporations and States as well as in Bilateral Investment Treaties (BITS), in particular when the activities, protected under such investments agreements, are liable to seriously affect people’s environmental health. Likewise, States as members of international financial institutions such as the IMF, the World Bank and regional development banks, should guarantee the protection of the right to health in their lending policies, credit agreements and international measures.863 Finally, States are invited depending on the availability of resources to contribute to improved access to health care services in other countries.864 All these international obligations seek to strengthen the responsibility of all members of the international community for the enjoyment of the right to health.

c.

The Role of the Environment in the Realization of the Right to Health

Human rights are interrelated, indivisible and interrelated. As a result, the protection of human health is not exclusively linked to the right to health. Moreover, it strongly depends on the realization of other human rights, especially of those related to the right to adequate living standards.865 In effect, the underlying determinants established by the CESCR in General Comment No. 14 show the close relationship between the right to health and other rights such as the right to food, water, housing, work, education, human dignity, life, nondiscrimination, equality, the prohibition against torture, privacy, access to information and the freedom of association, assembly and movement.866 In this connection, several diseases are caused either by the non-satisfaction of basic needs such as drinking water or sanitation, or the lack of access to natural resources for the production of food due to the disruption and depletion of natural environmental systems and ecosystem services.867 These corroborate the strong interdependence between the right to health and the environment. Nu862 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Pars. 39, 50 863 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Pars. 39, 64 864 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 39 865 Tobes, ‘The Right to Health’ in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 171; Özdem, The right to health (2006) 3 866 General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Pars. 1, 3; OHCHR, The right to health (2008) Fact Sheet No 31, 6 867 Özdem, The right to health (2006) 3, 9 – 10; WHO, Closing the gap in a generation (2008) 71

224

The Link Between Human Rights and the Environment

merous international instruments have included this linkage into their provisions. International human rights as well as environmental instruments have acknowledged the link between health and environment. Human rights instruments are the first which incorporated provisions related to health and environment. A clear example is the ICESR which embraces the right to safe and healthy working conditions (Article 7 (b)), the right of children and young people to be free from work and harmful to their health (Article 10 (3)) and the right to health which calls on States to take measures to improve environmental and industrial hygiene as well as to prevent, treat and control epidemic, endemic, occupational and other disease (Article 12). With respect to environmental instruments, human health is one of the main concerns of international environmental law. Indeed, the Stockholm Declaration recognized for the first time the fact that the quality of the environment is a precondition for a life in dignity and well-being. Further environmental instruments have called attention to the negative effects of man-made pollution on the environment and human health.868 In this context, the exploitation of energy resources, as a human activity, exerts a significant influence on the fragile relationship between human health and environment. In order to analyze the scope of this influence, this study will address the problem from three perspectives: the effects of environmental pollution caused by natural resource extraction on human health, the interrelationship between occupational health and environment and the dependency of indigenous people’s health on the quality of the environment. First, human health depends on functioning ecosystem services as well as on the quality and availability of environmental media such as air, soil, water and biodiversity.869 The ICESCR provides in Article 12 (2) some examples of measures to be undertaken by the State. One of these illustrations is ‘the improvement of all aspects of environmental and industrial hygiene’. In General Comment No. 14 the Committee interpreted Article 12 (2) (b) by explaining the content of this specific measure which includes the requirement to ensure an adequate supply of safe drinking water and basic sanitation; the prevention and reduction of exposure to harmful substances such as radiation and harmful chemicals or 868 Art. 1 of the Convention on Long-Range Cross-border Air Pollution; Art. 1 (2) of the Vienna Convection for the Protection of the Ozone Layer ; Preamble Par. 3 of the Montreal Protocol on Substances that Deplete the Ozone Layer ; Art. 1 (c) of the Convention on the Cross-border Effects of Industrial Accidents; Art. 1 (1) United Nations Framework Convention on Climate Change; Art. 1 of the Convention for the Prevention of Marine Pollution from Land-Based Resources; Art. 21 (2) of the Convention of Non-Navigational Uses of International Watercourses 869 Shelton, ‘A Right-based Approach to Conservation’ in Greiber (ed), Conservation with Justice: A Right-based Approach (2009) 16 – 17

Substantive Rights

225

other detrimental environmental conditions that directly or indirectly impact upon human health; as well as an adequate supply of food and proper nutrition.870 On this basis of this interpretation, it is possible to assert that environmental degradation and the exposure to harmful substances constitute a main concern of international community since they pose a serious threat to human health. In fact, one third of all illnesses are the result of environmental degradation and pollution.871 This shows the vulnerability of human health to changes in the environment. Industrial and extraction activities particularly contribute to these changes. Industrial and extraction activities cause negative consequences on the environment. The intensive use of chemical substances in the industrial and extraction sectors and the generation of toxic waste affect the environment and human health. According to the WHO, the use of chemicals has dramatically increased due to the development of the industrial, agricultural and transport sectors. This, in turn, has provoked the exposure of people, especially children, to chemicals through the air, drinking water and food. On the one hand, longterm exposure to chemicals gives rise to immediate, acute as well as chronic effects. On the other hand, low-level exposure to chemicals causes several adverse outcomes such as damage of the nervous and immune systems, impairment of the reproductive function and development, cancer and organ-specific damage.872 The European Commission and European Court of Human Rights have dealt in several cases with the consequence of exposure to chemicals on human health. In the case of Lopez-Ostra, the European Court dealt with the effects of sulphide emissions, which exceeded the permitted limit, on the health of the population living near a liquid and solid waste treatment plant while in the case of Tatar, the Court analyzed the effects of cyanide and other heavy metals on human health.873 In both cases, the Court pointed out the importance to analyze and establish the causal link between the environmental effect and serious and substantial risks to people’s health and well-being. However, the Court also determined that even though severe environmental impact may not seriously affect people’s health, they could negatively affect human well-being and prevent individuals from enjoying their right to private and family life consecrated in

870 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 15 871 Özdem, The right to health (2006) 17 872 WHO, ‘Chemical hazards’ accessed 16 August 2012 873 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Par. 49; European Court of Human Rights, Tatar vs Romania App no 67021/01 (2009), Par. 30

226

The Link Between Human Rights and the Environment

Article 8 of the European Convention on Human Rights.874 According to this consideration, serious environmental pollution has a negative effect not only on human health but also on the exercises of other human rights. Apart from this, both the Inter-American Commission of Human Rights and the African Commission of Human and Peoples Rights have addressed the consequence of the extraction of energy resources on health and environment. In the particular context of the exploitation of energy resources, the InterAmerican Commission of Human Rights dealt in its Report on Ecuador with the consequences of oil exploitation on human health. According to the Commission, important environmental media such as water, air and soil, were contaminated by oil operations, especially by the disposal of toxic waste, thereby causing the increment of serious illness among the population of the region such as skin diseases, rashes, chronic infections and gastrointestinal problems.875 Similarly, the African Commission of Human and Peoples Rights came to the conclusion in the case of Ogoni that the exploitation of oil reserves in the territory of the Ogoni caused environmental contamination as well as serious shortand long-term health effects. As a result, the Nigerian government was held responsible for violation of the right to health enshrined in Article 16 of the African Charter of Human and Peoples Rights since it actively participated and tolerated the contamination of air, water and soil which, in turn, harmed the health of the Ogoni population.876 On this basis, it is possible to conclude that human health and environment are closely interdependent. The environment provides ecosystem services which support livelihood including food, drinking water and housing. Therefore, dangerous industrial and extraction activities can generate important shifts in the environment and have a strong influence on the realization of the right to health. Unfortunately, such changes do not only affect the environment of the State where the pollution takes place but also generate serious cross-border effects. Health can also be affected by cross-border contamination resulting not only from industrial activities but also from industrial accidents. By virtue of international law, States have the general obligation to ensure that activities within their jurisdiction respect the environment of other States or areas beyond na874 European Court of Human Rights, Lûpez Ostra vs Spain App no 16798/90 (1994), Par. 51; European Court of Human Rights, Taskin and others vs Turkey App no 46117/99 (2004), Par. 113; European Court of Human Rights, Tatar vs Romania App no 67021/01 (2009), Par. 107 875 Inter-American Commission on Human Rights, ‘Report on the Situation of Human Rights in Ecuador’ OEA/Ser.L/V/II.96 (1997), ch VIII 876 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Pars. 1 – 2, 50

Substantive Rights

227

tional control.877 This principle has been embodied in Article 21 f the Stockholm Declaration and in Article 14 of the Rio Declaration. In the case of Tatar, a serious environmental accident occurred on 30 January 2000. Approximately 100,000 m3 of polluted water with toxic substances such as sodium cyanide, was discharged directly into the rivers Sasar, Lapus and Somes. As a result of this accident, polluted water crossed the borders of Romania and produced environmental damage, especially in the marine environment, in Hungary and in SerbiaMontenegro.878 Since more than two States were affected by this environmental accident, the European Court of Human Rights recalled the general duty of the authorities to discourage or prevent the transfer to other States of any substances that cause severe environmental degradation.879 This general obligation of States is complemented by the international duty to respect, protect and fulfill the right to health in other countries. In accordance with General Comment No. 3, States are urged to adopt measures individually or through international assistance and cooperation towards the full realization of the rights recognized in the ICESCR including the right to health.880 Accordingly, States have the international obligation to prevent environmental contamination generated by State authorities or third parties in other countries since cross-border environmental pollution affects the exercise of the right to health of the population living in neighbour countries.881 After analyzing the effects of environmental pollution caused by the extraction of natural resources on human health, the interrelationship between occupational health and environment in the context of the exploitation of natural resources will be examined hereafter. Second, health is an essential precondition for the realization of the right to work. The International Labour Organization (ILO) defined ‘health’ not only as the absence of diseases or infirmity but also as the mental and physical elements affecting health which are directly related to safety and hygiene at work.882 From this definition which clearly shows the close interdependence between the right to work and the right to health emerges the right to occupational health. This right comprises both the right to a safe and healthy working environment and the protection of workers against sickness, disease and injury arising out of their employment.883 In order to understand its scope, it is necessary to approach this ICJ, Gabcˇ†kovo-Nagymaros Project (Hungary vs Slovakia) ICJ Reports 1997, Par. 53 European Court of Human Rights, Tatar vs Romania App no 67021/01 (2009), Pars. 25, 28 European Court of Human Rights, Tatar vs Romania App no 67021/01 (2009), Par. 111 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 13 881 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 39 882 Art. 3 (e) of the C155 ILO 883 International Labor Organization, Health and life at work: A basic human right (2009) 5

877 878 879 880

228

The Link Between Human Rights and the Environment

right from two different angles, viz. work and health.884 From the perspective of the right to work, workers’ health and well-being depend on the quality of the environment where they develop their occupational activities. Consequently, States have the obligation, by virtue of Article 23 (1) of the UDHR and Article 7 (b) of the ICESCR, to ensure the right to occupational health by providing safe and healthy working conditions. From the perspective of the right to health, the right to occupational health implies that States undertake measures towards the improvement of all aspects of environmental and industrial hygiene (Article 12 (2) (b)) as well as the prevention, treatment and control of occupational accidents and diseases (Article 12 (2) (c)).885 On this basis, it is possible to conclude that an adequate working environment constitutes an important factor for the realization of the right to health and to work. An essential concept for ensuring the quality of the environment is the term ‘industrial hygiene’. The CESCR defines the term ‘industrial hygiene’ as the minimization of the causes of health hazards inherent in a working environment.886 For this purpose, ‘industrial hygiene’ provides measures to protect workers’ health. Some of them include the control of the environment as well as through the effective recognition and evaluation of those factors which may causes disease among workers or the community nearby the workplace.887 These measures and the effective implementation of the right to occupational health play a crucial role in the protection of workers’ health in the context of natural resource extraction. The extraction of natural resources may give rise to occupational hazards which can jeopardize workers’ health. In this connection, the interrelationship between work, environment and diseases contribute to shed light on the diseases triggered by work conditions. Notwithstanding the clear connection between work and disease, it is certainly difficult to determine the link between those factors in the work environment which affect workers’ health.888 In order to elucidate the relationship between work and diseases, three categories of diseases were identified. First, the so-called occupational diseases refer to those pathological conditions that may affect workers’ health. Such diseases are generally due to a specific causal agent closely linked to occupation. Second, workrelated diseases are those caused by multiple causal agents. These diseases are 884 Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 6 885 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 15 886 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 15 887 Alli, Fundamental principles of occupational health and safety (2009) 84 888 Lesage Michel, ‘Work-related diseases and occupational diseases: The ILO international list’ in ILO Encyclopedia of Occupational Health and Safety (1998) vol 1, part III, ch 26

Substantive Rights

229

either aggravated by work or triggered by factors in the work environment and other risk factors. Third, there are diseases affecting working populations which do not have a causal link with work but may be aggravated by occupational hazards to health.889 Extraction activities can cause all three illnesses in the workforce. In extraction industries, workers’ health is influenced by the environmental and working conditions under which they carry out their activities. In the oil and mining sector, workers are exposed to dust, fumes and highly toxic particulates. Consequently, worker’ health may be affected by occupational diseases such as coal miner’s pneumoconiosis; work-related disease such as chronic obstructive pulmonary disease; and diseases affecting entire working populations such as asthma.890 Similarly, the production of feedstock for biofuels requires the use of pesticides and fertilizers. This poses a significant challenge to environmental and industrial hygiene in agricultural work. The exposure of agricultural workers to such environmental hazards is linked to acute and chronic illnesses such as cancer and skin diseases.891 For instance, the widespread use of the toxic herbicide parquet in palm oil plantations destined for the production of biofuels not only has a negative effect on the environment but has also caused serious damage to skin, eyes, internal organs, brains and respiratory systems of plantation workers.892 Albeit all extraction industries entail risks for workers’ health, the extent of such risks depends on the level of technology and the standards under which the activity is developed. Workers employed in large-scale formal mining carry out their activities under high standards of occupational health and safety. By contrast, workers in the small-mining sector are particularly exposed to hazardous working conditions. The direct exposure to toxic substances, lack of appropriate working equipment and occupational accidents put the life and health of small scaleminers at risk. Moreover, this situation can be exacerbated by the fact that in many cases, the working environment is close to the workers’ home environment.893 As a result, crowded and substandard accommodation, polluted drinking water and food as well as poor sanitation are all factors that contribute to rising disease rates among poor working populations. Given these facts, States 889 Lesage Michel, ‘Work-related diseases and occupational diseases: The ILO international list’ in ILO Encyclopedia of Occupational Health and Safety (1998) vol 1, part III, ch 26 890 Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 37 891 Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 41 892 Pastowski, Reinhard and Kadelbach, Sozial-ökologische Bewertung der stationären energetischen Nutzung von importierten Biokraftstoffen am Beispiel von Palmöl (2007) 87 893 Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 38

230

The Link Between Human Rights and the Environment

are called on to regulate and control all aspects of environmental and industrial hygiene in the energy sector.894 Another population group affected by the extraction of energy resources are the indigenous peoples since their health and survival depend on their relationship with the environment. Indigenous peoples have the right, without discrimination, to enjoy the highest attainable standards of physical and mental health. Therefore, States have an international obligation to ensure adequate health services which must be planned and administered with the participation of the peoples concerned as well as take economic, geographic, social and cultural conditions and their traditional care, healing practices and medicines into due account.895 In order to achieve the effective realization of the right to health, State must ensure that indigenous peoples have, among other things, non-discriminatory access to health services, facilities and goods.896 This means on the one hand that health services and facilities must be physically and geographically accessible. On the other hand, those natural resources essential for the elaboration of traditional medicine must be available to indigenous peoples. With respect to the access to health facilities and services, the CESCR stated in General Comment No. 14 that States have the obligation to improve the access, in particular of vulnerable groups, to health care services.897 Unfortunately, until now indigenous peoples have faced considerable difficulties to access these services and institutions since most of them are only concentrated in urban areas of developing countries. Thus, indigenous populations in rural areas have to travel long distances to obtain medical care.898 In the case of X‚kmok K‚sek, for example, the Inter-American Court of Human Rights held the Paraguayan government responsible for not guarantying members of this Community physical and geographical access to health care facilities since the State provided neither adequate medical assistance nor transportation to the nearest health facility located 75 km from the indigenous settlement.899 These difficulties of access to health facilities and services were also confirmed in a study conducted in the frontier region of Ucayali located in the Eastern-most province of the 894 Kälin and Künzli, Universeller Menschenrechtsschutz (2008) 317; Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 38 895 Art. 25 (1) (2) of the C169 ILO; Art. 21 (1), Art. 23 of the UNDRIP 896 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 12 (b) (i) and (ii) 897 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 17 898 Mart†nez Cobo, Study of the problem of discrimination against indigenous populations (1987) 899 Inter-American Court of Human Rights, X‚kmok K‚sek Indigenous Community vs Paraguay (2010) Serie C no 214, Pars. 203, 205, 207 and 208

Substantive Rights

231

Peruvian Amazon. The study showed that access by indigenous people of those areas to health care is limited since most of these facilities are concentrated in urban areas and inadequate infrastructure and seasonal flooding isolate communities from adequate health care services.900 Given these facts, the study came to the conclusion that indigenous groups’ nutritional status and health strongly depends on the family’s ability to ensure sufficient nutrient intake, to reduce its own susceptibility to disease through environmental management and hygiene and to provide treatment with wild and domesticate medicinal plants.901 On the basis of this conclusion, the realization of the right of indigenous peoples to health is linked not only to the physical and geographical access to health facilities but also to the access to natural resources which are transformed into healthcare products through traditional knowledge. Over generations, the indigenous peoples have developed scientific knowledge on the basis of their interaction with the environment.902 The importance of traditional knowledge has been recognized in numerous international instruments including in Principle 22 of the Rio Declaration, Chapter 26 of Agenda 21 and Article 8 (j) of CBD. According to the last provision, States have the obligation to respect, preserve and maintain knowledge, innovation and practices of indigenous and local communities for the conservation and sustainable use of biological diversity. Accordingly, the effective preservation of traditional knowledge depends on the conservation of the environment and the access of indigenous peoples to land and natural resources. In the area of health, this traditional knowledge is rooted in the use of medicinal plants and animals. By virtue of Article 25 (2) of C169 ILO and Article 24 (1) of UNDRIP, indigenous peoples have the right to their traditional medicine and to maintain their healing practices including the conservation of the vital medicinal plants, animals and minerals. Likewise, the CESCR pointed out in General Comment No. 14 the important role of vital medicinal plants to indigenous peoples for the full enjoyment of health. Despite of the international recognition of the right of indigenous peoples to traditional healing practices and medicines and the urgency to preserve biodiversity, the practice of traditional medical knowledge is being jeopardized by external factors such as the exploitation natural resources. The health of indigenous peoples is linked to the access to and sustainable use

900 Murray Tamsyn P and S‚nchez-Choy Jos¦, ‘Health, biodiversity and natural resource use on the Amazon frontier: an ecosystem approach’ (2001) vol 17 Cad Safflde Publica 181 – 191, 182 901 Murray Tamsyn P and S‚nchez-Choy Jos¦, ‘Health, biodiversity and natural resource use on the Amazon frontier: an ecosystem approach’ (2001) vol 17 Cad Safflde Publica 181 – 191, 182 902 Ludescher, Menschenrechte und indigene Völker (2004) 255

232

The Link Between Human Rights and the Environment

of the environment and the natural resources within their territories.903 Unfortunately, the implementation of development-related projects has caused ecological damage and the displacement of indigenous peoples from their territories. For example, in its Report on Paraguay the Inter-American Commission of Human Rights called attention to the negative consequences of two hydroelectric projects – Yacyret‚ and Itaipffl – on the living environment of indigenous communities. In the particular case of the Yacyret‚ Dam, the flooding destroyed a system of islands in the river that contained invaluable biodiversity and was an ancestral territory of indigenous communities.904 As a consequence of such projects, indigenous peoples have been deprived from access to natural raw materials essential for the elaboration of their traditional medicines as well as to underlying determinants for health such as food, sources of drinking water and housing.905 This, in turn, has a serious impact on indigenous peoples’ health and on their socio-economic integration. In fact, in the cases of Yakye Axa and the Sarayak, the Inter-American Court of Human Rights pointed out that the lack of access to land and natural resources puts indigenous peoples in a situation of extreme misery since they are unable to carry out their traditional activities and access their traditional health systems.906 In order to ensure the practice of traditional medicine and to prevent and cure illnesses, States have the international obligations to respect, protect and fulfill the right of indigenous peoples to access to their ancestral territories and to the use and enjoyment of their natural resources. In this sense, States are called on to regulate the property rights of indigenous peoples over their territories and resources, and to control the exploitation of energy resources through the implementation of important safeguards including access to information, participation in decision-making processes, EIAs and access to judicial resources.907

903 Ludescher, Menschenrechte und indigene Völker (2004) 257 904 Inter-American Commission on Human Rights, ‘Third Report on the Situation of Human Rights in Paraguay’ OEA/Ser.L/V/II.110 (2001), Pars. 42 905 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 17; Ludescher, Menschenrechte und indigene Völker (2004) 255; WHO, Closing the gap in a generation (2008) 71; Secretariat of the Convention on Biological Diversity, Global Biodiversity Outlook 3 (2010) 55 906 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 167 – 168; Inter-American Court of Human Rights, Pueblo Ind†gena Kichwa de Sarayaku vs Ecuador (2012) Serie C no 245, Par. 147; Inter-American Commission on Human Rights, ‘Indigenous and tribal peoples’ rights over their ancestral lands and natural resources: Norms and Jurisprudence of the Inter-American Human Rights System’ OEA/Ser.L/V/II (2009), Pars. 157 – 158 907 Arts 7 (3) (4) and 15 of the C169 ILO; Art. 32 (2) (3) of the UNDRIP; Menschenrechte und indigene Völker (2004) 257

Substantive Rights

d.

233

Conclusion

The right to health is essential for ensuring human well-being and development and strongly depends on the realization of economic, social and cultural rights. This right has been anchored in Article 12 of the ICESCR and in Article 16 of the African Charter of Human and Peoples Rights. Although the European and InterAmerican Conventions on Human Rights do not embody the right to health in its provisions, this right has been recognized and developed in case law on the basis of other health-related rights. With respect to the scope and content of the right to health, the Committee on Economic Social and Cultural Rights identified structural components identified in Article 12 of the ICESCR. By virtue of such components, the Committee concluded that the right to health imposes upon States not only the obligation to provide adequate health services, goods and facilities but also the obligation to create factors and conditions that guarantee the highest possible standards of health for everyone in its jurisdiction. In this context, the Committee identified general and specific obligations regarding the realization of the right to health. With respect to general obligations, States have the immediate obligation to ensure the satisfaction of, at the very least, the minimum essential levels of each of the rights enunciated in the Covenant which includes essential primary health care. This, in turn, requires that States guarantee among others access to components essential to life, such food, housing, drinking water and sanitation. In addition to this obligation, States have the duty to respect, protect and fulfill the right to health. Regarding the obligation to respect, States must refrain from interfering with the right to health by, for example, polluting the environment through industrial waste from State-owned facilities. Furthermore, States have a duty to protect the realization of the right to health against arbitrary interference by third parties. In order to prevent such interference, States are called on to undertake for example measures to lay down minimum provisions on healthy working conditions in private-sector workplaces and to prevent environmental impact by third parties that seriously put people’s health at risk. With regard to the obligation to fulfill, States must adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures towards the full enjoyment of the right to health. The effective realization of the right to health is strongly linked to the environment. International human rights as well as environmental instruments have recognized this linkage and have drawn attention to the negative effects of manmade pollution on the environment and human health. In this context, the exploitation of energy resources, as a human activity, decisively influences the fragile relationship between human health and the environment. Human health requires among others functioning ecosystem services as well as environmental

234

The Link Between Human Rights and the Environment

media such as air, soils, water and biodiversity. Unfortunately, industrial and extraction activities generate environmental degradation and expose human beings and the nature to harmful substances. For instance, the intensive use of chemical substances and the generation of toxic waste in these sectors have affected the environment and human health. The European Commission and the European Court of Human Rights have addressed the consequence of the exposure to chemicals on human health in its case law. Similarly, the InterAmerican Commission of Human Rights and the African Commission of Human and Peoples Rights have specifically dealt with the effects of the extraction of energy resources on health and environment. Furthermore, industrial and extraction activities may cause cross-border environmental impact and health problems. Facing this situation, States have a duty to avoid and prevent environmental contamination generated by State authorities or third parties in other countries. A further link between health and environment relates to occupational health. Aiming the realization of the right to work, States have a duty to ensure a safe and healthy working environment and to protect workers from illness, disease and injury arising out of their employment. The effective implementation of this obligation plays a significant role in the protection of workers’ health in the context of natural resource extraction. Workers’ health may be affected during the performance of extraction activities either by occupational hazards or by environmental and working conditions under which they carried out such activities. Nevertheless, the extent of the risks for workers’ health depends on the level of technology and the standards under which the activity is developed. For example, the standards of occupational health and safety are higher in the largescale formal mining sector than in the small-mining sector. Given these facts, States are urged to undertake measures to regulate environmental and industrial hygiene in the energy sector. Another group whose health has been affected by the extraction of energy resources are the indigenous peoples. In order to ensure indigenous peoples’ health, States must ensure the enjoyment of the highest attainable standards of physical and mental health and to take into account economic, geographic, social and cultural conditions and their traditional care, healing practices and medicines. This means that indigenous peoples have on the one hand the right to non-discriminatory access to health services and facilities. Unfortunately, indigenous peoples still face difficulties to access to these services and institutions since in developing countries, most of them are located in urban areas. On the other hand, indigenous peoples have also the right to access to those natural resources, essential for the elaboration of their traditional medicines. In the area of health, traditional knowledge depends on the environment. As a result, the environmental impact caused by the extraction of energy resources may have a negative influence on the exercise of traditional

Substantive Rights

235

medicine due to the damage or diminution of medicine plants and animals within their territories. Given these facts, States are obliged to ensure the access of indigenous peoples to their ancestral territories and the use and enjoyment of their natural resources.

6.

The Right to Water

a.

Water as a Human Right

Freshwater is a limited natural resource which falls within the category of environmental media and whose principal function is to sustain life and produce biological resources.908 This valuable resource makes up 2.5 percent of the total water pool on the Earth. Nevertheless, only 42,700 km3 of freshwater are readily accessible. This amounts to about 0.1 percent of the total freshwater and 0.003 percent of the total water on the planet.909 Today, around 3.800 km3 are extracted annually from lakes, rivers and aquifers.910 It is expected that the water withdrawal will increase in the next years, thereby causing water stress. Several driving forces put significant pressure on water resources. The first factor is population growth. Population has grown at a significant rate, from 2.6 billion in 1950 to 7 billon today while water supply per capita has fallen by 58 percent.911 This demographic boom has boosted the consumption per capita so that more natural resources including water, are required to cover the demand of goods and services.912 In fact, the economic use of water, notably irrigation and industry, has greatly exceeded the use of water for domestic supply.913 Water use for municipal and domestic uses represents 9 percent while irrigation and industry accounts for 67 and 19 percent of water withdrawals, resp. Water analysis predicts that water demands will increase in the next decades giving rise to a strong competition for water between different users.914 A second factor that causes water stress is climate change. Estimates suggest that climate change will account 908 Commission of the European Communities, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final, 8 909 Golay Christophe, The right to Water (CETIM, Critical Report No 6, 2009) 2 910 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 3 911 Scanlon John, Cassar Angela and Nemmes No¦mi, ‘Water as a Human Right?’ (2006) IUCN Environmental Policy and Law Pager No 51, 16 912 Golay Christophe, The right to Water (CETIM, Critical Report No 6, 2009) 4 913 Howard and Bartram, Domestic Water Quantity, Service Level and Health (WHO 2003) 28 914 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 5

236

The Link Between Human Rights and the Environment

for an added 20 percent in global scarcity.915 One of the expected effects of climate change comes from the modification of the world’s hydrological cycle. This means that precipitations will increase in some latitudes but decline in tropical and subtropical regions. Consequently, water quality and quantity will be affected either by droughts or floods.916 A third factor is the mismanagement of water resources. Deforestation, overgrazing, unsustainable agriculture, lack of distribution networks and excessive extraction of water resources all have a negative impact on water resources and on riverine ecosystems.917 The combination of all these factors has given rise to water scarcity and pollution depriving over one-sixth (1.1 billon people) of the world’s population from access to a basic water supply.918 Due to the importance of water for life and the threats that this resource faces, this Chapter will focus on the analysis of the right to water and the effects of the extraction of energy resources on the enjoyment of this right.

b.

Legal Foundations

The right to water has not been explicitly recognized as a stand-alone human right in international treaties.919 Nevertheless, the existence of this right is indisputable. The legal basis which endorses its existence rests on three pillars. The first pillar assumes that the right to water emerges from specific provisions entailed in international human rights instruments as well as from its recognition and inclusion in the national law of individual states. Within the framework of the ICESCR, the right to water has its roots in Articles 11 and 12 of the Covenant.920 Accordingly, Article 11 (1) of the ICESCR provides an illustrative list of rights that contribute to realizing the right to an adequate living standard. Since water is an essential precondition for human survival and well-being, the right to water constitutes an integral element towards the effective exercise of the 915 Scanlon John, Cassar Angela and Nemmes No¦mi, ‘Water as a Human Right?’ (2006) IUCN Environmental Policy and Law Pager No 51, 18 916 Scanlon John, Cassar Angela and Nemmes No¦mi, ‘Water as a Human Right?’ (2006) IUCN Environmental Policy and Law Pager No 51, 18; UNGA, Right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2007), Pars. 100 – 102 917 Scanlon John, Cassar Angela and Nemmes No¦mi, ‘Water as a Human Right?’ (2006) IUCN Environmental Policy and Law Pager No 51, 17; COHRE and others , Manual on the Right to Water and Sanitation (2007) 2 – 3 918 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 1; WHO and UNICEF, Global Water Supply and Sanitation Assessment 2000 Report (2000); Steiner and Hass, ‘The Report of the World Commission on Dams: Some implications for energy’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 142 919 OHCHR and WHO, The right to water (2010) Fact Sheet No 35, 3 920 Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard (2007) 193

Substantive Rights

237

right to an adequate living standard.921 Bearing in mind the crucial role of water, the CESCR consecrated in General Comment No. 15 the human right to water and developed its normative content, scope and obligations. With respect to the right to the highest attainable standard of health contained in Article 12 (1) of the ICESCR, the access to safe and potable water was characterized by the CESCR in General Comment No. 14 as an underlying determinant of health. This means that water is a factor that guarantees the highest health standards.922 This view was confirmed by the African Commission of Human and Peoples Rights when it held the Zairian government responsible for the violation of the right to health under Article 16 of the African Charter of Human and Peoples Rights since that State failed to provide basic services necessary for minimum health including safe drinking water.923 The right to water also has its roots in the right to life. In the case of the ‘Street Children’ (Villagr‚n Morales and others) vs Guatemala, the Inter-American Court of Human Rights recognized that the right to life goes beyond the protection against the arbitrary deprivation of human life by stating that the right to life also ensures that individuals must not be prevented from having access to conditions that guarantee a dignified existence.924 Consequently, access to clean water is undoubtedly an essential condition for leading a life of human dignity.925 Several human rights treaties contain explicit926 and implicit927 references to the right to safe drinking water. International law instruments acknowledge the importance of ensuring access to water. The 1997 United Nations Convention on the Law of the NonNavigational Uses of International Watercourses prioritizes, on the basis of the customary rule of ‘reasonable and equitable utilization’, the use of international watercourses to satisfy basic human needs of the co-basin states including the provision of safe drinking water and water required for basic subsistence food 921 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 3 922 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 4, 11, 12 (a) 923 African Commission of Human and Peoples Rights, Free Legal Assistance Group and Others vs Zaire (1996) Comm nos 25/89, 47/90, 56/91, 100/93, Pars. 4, 47 924 Inter-American Court of Human Rights, The ‘Street Children’ (Villagr‚n Morales and others) vs Guatemala (1999) Serie C no 63, Par. 144 925 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 1 926 Explicit reference in human right instruments: Art. 24 (2) (c) of the Convention on the Rights of the Child; Art. 14 (2) (h) of the CEDAW; Art. 28 (2) (a) of the Convention on the Rights of Persons with Disabilities; Art. 5 (b) of the C161 ILO; Art. 14 (1) (2) (c) of the African Charter on the Rights and Welfare of the Child; and Art. 15 (a) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 927 Implicit References in human rights treaties: Art. 55 of the UN-Charta; Art. 25 (1) Universal Declaration of Human Rights; Art. 6 International Covenant on Civil and Political Rights (ICCPR); Art. 11 and 12 International Covenant on Economic, Social and Cultural Rights (ICESCR)

238

The Link Between Human Rights and the Environment

production.928 At regional level, African States are called on by virtue of the African Convention on the Conservation of Nature and Natural Resources to take measures to guarantee a sufficient and continuous supply of suitable water for their populations.929 In Europe, the Protocol on Water and Health urges States to undertake appropriate measures to provide access to drinking water as well as to protect water resources and especially drinking water sources from pollution.930 This obligation on European States was reinforced by the recognition of the Council of Europe in its Recommendation 14 on the European Charter on Water Resources on the right to sufficient quantities of water to meet basic needs.931 As observed, the existence of the human right to water has its foundations in international law treaties, but also in growing state practice. The right to water has been anchored in the constitutions of several states.932 This, in turn, has enabled individuals to claim the enforcement of this right before national courts. A number of judicial decisions concerning the right to water has been issued within the context either of the protection of a healthy environment or of access to a minimum essential amount of water. In Belgium, for example, the Court of Arbitration recognized the right of everyone to a minimum supply of drinking water on the basis of Article 23 of the Constitution which ensures the right to the protection of a healthy environment.933 In India, the Supreme Court determined that the right of enjoyment of pollution-free water has its roots in the right to life which constitutes a fundamental right under Article 21 of the Indian Constitution.934 In Argentina, the courts ordered the 928 Convention of Non-Navigational Uses of International Watercourses (1997), Articles 6 (3), 10 and 21; Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 23 929 Art. VII (2) of the African Convention on the Conservation of Nature and Natural Resources (2003) 930 Protocol on Water and Health to the United Nations Economic Commission for Europe’s 1992 Convention on the Protection and Use of Cross-border Watercourses and International Lakes, Art. 4 (2) (a) (c) 931 Recommendation 14 Of the Committee of Ministers to member states on the European Charter on Water Resources (2001), Pars. 5 and 9 932 The right to water and the state’s obligation to ensure its realization are included in the constitutions of Ecuador, Ethiopia, Panama, the Gambia, the Islamic Republic of Iran, South Africa, Uganda, Venezuela and Zambia. Likewise, the constitutions of Cambodia, Colombia, Eritrea, Guyana, the Lao People’s Democratic Republic, Mexico, Panama, Switzerland and Venezuela which require the government of each to protect water resources, in Guiss¦ El Hadji, Relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to a drinking water supply and sanitation (2004) Par. 38 933 Cour d’Arbitrage, Commune de Wemmel (1998) ArrÞt no. 36/98, Par. B.4.3; Guiss¦ El Hadji, Relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to a drinking water supply and sanitation (2004) Par. 39 934 Guiss¦ El Hadji, Relationship between the enjoyment of economic, social and cultural rights

Substantive Rights

239

Government and water service providers in several cases to provide a minimum amount of water (between 50 – 100 litres per person per day) regardless of a person’s ability to pay.935 Furthermore, the Argentinean Courts have pointed out that water contamination by oil and hydrocarbons constituted a violation of the right to health protected under the Constitution.936 Similarly, in Brazil and South Africa, courts rejected decisions on the part of water service providers to cut off water supplies, citing the right to water.937 The incorporation of the right to water into domestic legislation and its enforcement through national courts clearly show the increasing recognition of the right to water as well as its effective implementation and its actionability before domestic courts. The second pillar which corroborates the existence of the right to water focuses on the fact that water constitutes a prerequisite for the realization of other human rights.938 With respect to the right to adequate living standards, the access to water plays a significant role in the realization of the right to food and housing. Water is essential for healthy nutrition as well as for food production.939 According to the CESCR, an adequate amount of safe water must be provided to satisfy consumption, cooking, personal and household hygiene requirements and of course to prevent death from dehydration.940 The Food and Agricultural

935

936

937

938 939 940

and the promotion of the realization of the right to drinking water supply and sanitation (2004) Par. 39 Quevedo Miguel Angel y otros c/Aguas Cordobesas S.A. Amparo, Cordoba City (Juez Sustituta de Primera Instancia y 51 Nominaciûn en lo Civil y Comercial de la Ciudad de Cûrdoba, 2002); Guiss¦ El Hadji, Relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation (2004) Par. 39; Cahill Ripley Amanda, The Human Right to Water and Its Application in the Occupied Palestinian Territories (2011) 186 Menores Comunidad Paynemil s/accion de amparo, Expte. 311-CA-1997 (Sala II. C‚mara de Apelaciones en lo Civil, Neuquen, 1997); Valentina Norte Colony, Defensor†a de Menores No. 3 c/Poder Ejecutivo Municipal s/acciûn de amparo, Expte. 46 – 99 (Acuerdo 5 del Tribunal Superior de Justicia, Neuquen, 1999); Guiss¦ El Hadji, Relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation (2004) Par. 39; Cahill Ripley Amanda, The Human Right to Water and Its Application in the Occupied Palestinian Territories (2011) 187 Residents of Bon Vista Mansions vs Southern Metropolitan Local Council, Case No. 01/12312 (High Court of South Africa (Witswatersrand Local Division), 2001); Highveldridge Residents Concerned Party vs Highveldridge Transitional Local Council and Other, Case No. 28521/2001, (Transvaal Provincial Division, 2002); Bill of Review 0208625 – 3 (Special Jurisdiction Appellate Court, Paran‚, 2002) Guiss¦ El Hadji, Relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation (2004) Par. 39; Cahill Ripley Amanda, The Human Right to Water and Its Application in the Occupied Palestinian Territories (2011) 184 – 187 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 1 Ziegler, Preliminary report of the Special Rapporteur of the Commission on Human Rights on the right to food (2001), Par. 58 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 2

240

The Link Between Human Rights and the Environment

Organization (FAO) estimated that the average food ingestion of 2,800 kcal/ person/day may require approximately 1,000 m3 per year.941 In this sense, sustainable access to water resources for agriculture constitutes a critical factor for the enjoyment of the right to food.942 On the one hand, household food production in rural areas in developing countries depends on the use of domestic water. This, in turn, ensures diet variety and nutritional balance among the population living in these areas. On the other hand, agricultural production systems for local consumption or for export and trade depend on large-scale water supply.943 In this context, the CESCR recognized in General Comment No. 15 the importance of ensuring a sustainable and equitable access, especially of disadvantaged farmers, to water resources for subsistence farming.944 The productive use of domestic water, especially for food production, has a significant influence on the well-being, livelihoods and health of low-income households in developing countries since water use for this purpose does not only contribute to meet nutritional requirements but also constitutes a source of additional income from small-scale sales.945 Unfortunately, estimates show that currently about 777 million people in developing countries do not have access to adequate food. One of the multiple reasons for this constitutes the lack of access to water for the production of food for their own consumption.946 Bearing in mind the passage in Article 1 (2) of the ICESCR which states that no one may ‘be deprived of its own means of substance’, the Committee imposed on States the obligation to ensure access to water for subsistence farming and for securing livelihoods, especially of indigenous peoples.947 In the case of indigenous peoples, the Inter-American Court of Human Rights observed the Yakye Axa case in which members of this Community had been deprived of access to their traditional means of substance including clean water, as a result of the lack of recognition of the right to property over their ancestral lands. This situation had a negative effect on the realization of their right to a decent life.948 On this basis, it is possible to conclude that access to water resources for agricultural purposes is 941 FAO, Agriculture, food and water (2003) 17 942 UNGA, Right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2007), para59 943 WHO and others, Right to water (2003) 18 944 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 7; Ziegler, Preliminary report of the Special Rapporteur of the Commission on Human Rights on the right to food (2001), Par. 71 945 Howard and Bartram, Domestic Water Quantity, Service Level and Health (WHO 2003) 3, 23 – 24 946 WHO and others, Right to water (2003) 18 947 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 7 948 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Par. 168

Substantive Rights

241

also within the scope of protection of the right to water provided that these resources are used to prevent starvation and ensure the subsistence of marginalized groups.949 Water also constitutes a crucial element for the realization of the right to housing. In General Comment No. 4, the CESCR identified certain criteria essential for ensuring the adequacy of housing. One of these criteria is the availability of facilities essential for health, security, comfort and nutrition. Accordingly, the sustainable access to common resources such as safe drinking water, should be guarantee to all holders of the right to housing.950 Unfortunately, forced evictions and displacements have deprived vulnerable groups, in especial indigenous peoples, of access to appropriate housing with minimum basic services such as clean water as well as of the use and enjoyment of natural resources essential for obtaining water.951 Similarly, access to clean drinking water is essential for the realization of the right to health. Irrigation, dams and other water related projects have triggered the transmission of diseases including malaria and other vector-borne diseases. The population most affected by such diseases are children. In fact, of the 1.3 million people who died of malaria each year, 90 percent are children under 5 years of age.952 Moreover, the consumption of polluted water and insufficient access to water for washing and personal hygiene triggers water-borne diseases such as cholera, typhoid, diarrhoea, viral hepatitis A as well as water-washed diseases.953 In case of Chief Bernard Ominayak and the Lubicon Lake Band, the authors pointed out that the lack of running water caused an increase in diseases associated with poverty and poor sanitation. According to the authors, the number of abnormal births and the outbreak of tuberculosis which affected approximately one third of the community, constituted clear evidence of this situation.954 By virtue of Article 12 (2) (b) of the ICESCR, one of the core steps to be undertaken by States towards the full realization of the right to health constitutes ‘the improvement of all aspects of environmental and industrial hygiene’. This includes, 949 United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 12 950 CESCR, General Comment No 4, The right to adequate housing (Art. 11(1)) (1991), Par. 8 (b) 951 Inter-American Court of Human Rights, Yakye Axa Indigenous Community vs Paraguay (2005) Serie C no 125, Pars. 164, 168; African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 285; COHRE and others , Manual on the Right to Water and Sanitation (2007) 93 952 UNGA, Right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2007), Par. 52 953 COHRE and others, Manual on the Right to Water and Sanitation (2007) 6 954 HRC, Chief Bernard Ominayak and the Lubicon Lake Band vs Canada (1990) no 167/1984, Par. 23.2

242

The Link Between Human Rights and the Environment

among other measures, the requirement to ensure an adequate supply of safe and potable water as well as the non-discriminatory prevention of threats to health from unsafe and toxic water conditions.955 On the basis of this analysis, it is possible to affirm the existence of right to water since the realization of other human rights is intrinsically linked to access to safe drinking water. The third pillar relates to the prior recognition to the right to water in soft-law instruments, declarations and resolutions. Principle 2 of the Stockholm Declaration on the Human Environment defines water as a natural resource to be safeguarded for the benefit of present and future generations through careful planning or management. Nevertheless, the right of everyone to have access to water in quantities and of a quality equal to their basic needs was recognized for the first time at the United Nations Water Conference held at Mar del Plata in 1977.956 Subsequently, the Earth Summit and Agenda 21 included, within the framework of the Rio Conference of 1992, a Chapter on the protection and management of water resources. Moreover, the international community set a crucial target in the United Nations Millennium Goals (MDGs) for the prevention of conflicts and improved access to drinking water, viz. ‘to halve the portion of people unable to reach or to afford safe drinking water by 2015’.957 In 2006, the Sub-Commission on the Promotion and Protection of Human Rights developed non-binding guidelines for the realization of the right to drinking water. With respect to UNGA resolutions, the General Assembly defined in its resolution on the Right to Development the right human right to water as an imperative for the full realization of the right to development.958 Finally, in 2010 the UNGA acknowledged in its Resolution 10967 the human right to ‘clean water’. Despite the non-binding character of this resolution, it is evidence of a powerful international mobilization effort for a political and legal framework whose ultimate goal is to crystallize the right to water as a stand-alone human right.959 All these conferences, forums and international law instruments show evidence of the existence of the right to water in modern international law ; however, it must be noted that the normative content and scope of this right is still under development.

955 CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 15; CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 8 956 United Nations, Report of the United Nations Water Conference (1997) part I, ch I, res II 957 Agenda 21, goal 7 target 10 958 UNGA, The right to development (A/RES/54/175, 2000) Par. 12 (a) 959 Boisson de Chazournes Laurence, Fresh Water in International Law (2013) 149, 152

Substantive Rights

c.

243

Definition and Normative Content

In General Comment No. 15, the CESCR provided a definition of the right to water: ‘The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’.960 As it can be observed, several adjectives are used in the definition. Their principal function is to describe the appropriate conditions that water should have for human consumption. These adjective can be summed up in one term: adequacy of water. The human right to water grants individuals a legal entitlement to have access to an ‘adequate’ amount of water for personal and domestic use.961 Although the access to adequate water may vary according to different conditions, the CESCR identified three main factors that States must take into account to guarantee the realization of this right under any circumstances.962 These factors are availability, quality and accessibility. Life, environment and development strongly depend on the availability of water. Nevertheless, the availability of water supply is not the same in all regions of the world. On the one hand, water availability depends on the level of precipitation, the degree of extraction of groundwater reserves and on changes in climate conditions. All these factors influence water supply in different countries and regions on the world unevenly.963 On the other hand, water is used for different purposes. The EEA identified two main categories of water uses, viz. abstractive use (abstraction and irrigation, domestic use and industrial use) and in-stream use (recreation and ecosystem maintenance).964 The greatest demand for water is found in agriculture, industry and the domestic sector.965 With respect to agriculture, water constitutes a crucial factor for food production. Globally, agricultural irrigation accounts for 70 percent of water withdrawn from lakes, rivers and underground sources. According to the WHO, agricultural land has risen to about 1.5 billon hectares (11 percent of the total land surface). About 270 million of the total cultivated land is irrigated. This means that 40 percent of the world food production is obtained from 18 percent of irrigated agriculture.966 Since 1960, the consumption of water used in agriculture has increased by 60 960 961 962 963

CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 1 WHO and others, Right to water (2003) 9 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 10; EEA, Sustainable use and management of natural resources (2005) 24, 26 964 EEA, Sustainable use and management of natural resources (2005) 23 965 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 40 966 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Pars. 13, 44; WHO and others, Right to water (2003) 18

244

The Link Between Human Rights and the Environment

percent as a direct consequence of population growth. This tendency will continue in the future since it is expected that water use for agricultural purposes will increase 15 to 20 percent by 2015 to meet future food requirements.967 In addition to agricultural irrigation, water plays a significant role for the generation of energy for industrial development. In many countries electricity is generated by large dams.968 About 60 percent of the world’s 227 rivers are fragmented by dams, diversions and canals. According to the WCD, this has lead to the degradation of ecosystems, displacement of about 40 – 80 million of people since 1950s and to the reduction of water available for agriculture and domestic use.969 Apart from these abstractive uses, environmental hygiene is strongly linked to the availability of water resources. The healthy functioning of ecosystems depends on adequate water flows in rivers and on adequate water levels in lakes and reservoirs.970 Fresh water ecosystems provide important ecosystem services including food production, reduction of flood risks and the filtering of harmful pollutants. In General Comment No. 15, the CESCR made a single reference to the significance of water for ensuring environmental hygiene.971 Nevertheless, the use of water for ecological purposes has been considered less important than the provision of water for human needs.972 This misconception has led to water scarcity and heavy water pollution. In fact, the overexploitation of water resources, the changes of water flows by human action and the elimination of forests have caused the reduction of the water supply for wetlands, lakes and rivers.973 This, in turn, has resulted in serious social effects including health problems due to the intake of food from contaminated ecosystems and the lack of access by riverine communities due to falling water levels. Moreover, water pollution caused the reproductive failure 967 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 44; World Commission on Dams, Dams and Development: A new framework for decision-making (2000) 6 968 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 6 969 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 14; Scanlon John, Cassar Angela and Nemmes No¦mi, ‘Water as a Human Right?’ (2006) IUCN Environmental Policy and Law Pager No 51, 18; Golay Christophe, The Right to Water (CETIM, Critical Report No 6, 2009) 4 – 5 970 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 41 971 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 6 972 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Pars. 24 and 41; World Commission on Dams, Dams and Development: A new framework for decision-making (2000) 6 973 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Pars. 8, 38; WHO and others, Right to water (2003) 19

Substantive Rights

245

and death of wildlife species.974 Given these facts, it is necessary to protect ecosystems and control pollution from agriculture and industry in order to maintain healthy ecosystems which provide important ecosystem services including access to safe drinking water.975 An additional factor that influences the availability of water resources constitutes the use of water for personal and domestic purposes. According to the CESCR, States must ensure an adequate amount of water in order to prevent death from dehydration, to reduce the risk of water-related diseases and to provide for personal and domestic consumption.976 The scope of protection of the right to water only covers the continuous and sufficient water supply for personal and domestic uses, i. e. for drinking, personal hygiene, washing clothes and food preparation and household hygiene.977 With respect to the quantity of available water, the Committee refers to the WHO standards.978 According to the WHO, between 50 and 100 litres of water per person per day are necessary to meet the most basic hygiene and consumption needs.979 Nevertheless, the Committee also noted that this minimal amount may vary depending on health status, climate and work conditions. Although the Committee emphatically pointed out that water for personal and domestic uses as well as for the prevention of starvation and diseases takes priority over any other allocation of water resources, in General Comment No. 15 it simultaneously recognized the significant role that water plays for the realization of other human rights.980 The second factor ensuring the realization of the right to water is the water quality. In accordance with the CESCR, water for personal and domestic uses must be safe and acceptable. This means that water must be free from microorganisms, chemical substances and radiological hazards that constitute a threat to a person’s health. Moreover, the Committee pointed out that water should be

974 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 8 975 WHO and others, Right to water (2003) 19 – 20 976 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 2 977 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 (a); WHO and others, Right to water (2003) 19 – 20; COHRE and others, Manual on the Right to Water and Sanitation (2007) 13; HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (2007), Par. 13; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 8 978 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 (a) 979 Howard and Bartram, Domestic Water Quantity, Service Level and Health (WHO 2003) 3, 22; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 8 980 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 6

246

The Link Between Human Rights and the Environment

of an acceptable color, odor and taste.981 In order to comply with the requirements of the Committee, the WHO developed the ‘WHO Guidelines for Drinking-water Quality’.982 According to the guidelines, safe drinking water ‘does not represent any significant risk to health over a lifetime of consumption including different sensitivities that may occur throughout life stages’.983 The principal aim of these guidelines is to protect public health by ensuring safe drinking water. Accordingly, they provide an international scientific framework for the development and implementation of national regulations and standards to ensure drinking water quality.984 Despite of these standards, the quality of drinking water continues to be affected by pollution of groundwater and water surfaces originated from point and diffuses sources.985 Given the growing difficulties in ensuring the availability and quality of water resources, international human rights courts have dealt with this issue. In the case of Xakmok Kasek, the Inter-American Court of Human Rights dealt with availability and quality of water. The Court observed that the members of the Community were supplied with no more than 2.17 litres per person per day. This amount was below the minimum requirements laid down in accordance with international standards. Moreover, the Paraguayan State did not prove that the water supply met the minimum quality requirements. Given these facts, the Court concluded that Paraguay did not provide the members of the Community with water in sufficient quantity and of adequate quality and that this exposed them to risks and disease.986 Since the well-being and health of individuals depends on the quantity and quality of water resources, States are urged to ensure the quantity and quality of water in accordance with international standards. The last factor that is essential for the realization of the right to water is ‘accessibility’. In General Comment No. 14, the CESCR established that access to water and adequate facilities and services must be guaranteed to everyone on a non-discriminatory basis within States’ jurisdiction.987 This factor has four dimensions: physical accessibility, economic accessibility, non-discrimination and information accessibility. With respect to the first dimension, physical accessibility refers on the one hand to the direct relationship between the daily 981 982 983 984

CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 (b) WHO, Guidelines for Drinking Water Quality (2011) WHO, Guidelines for Drinking Water Quality (2011) 1 United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 9; WHO, Guidelines for Drinking Water Quality (2011) 2 985 EEA, Sustainable use and management of natural resources (2005), 28 986 Inter-American Court of Human Rights, X‚kmok K‚sek Indigenous Community vs Paraguay (2010) Serie C no 214, Pars. 194 – 196 987 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 (c)

Substantive Rights

247

amounts of accessed water, the distance to the water source and the collection time.988 On this basis, the CESCR pointed out in General Comment No.15 that water and adequate water facilities and services must be within safe physical reach for all sections of the population. This means that adequate water must be close to, or at least at a reasonable distance from each household, educational institution and workplace.989 Figures provided by the WHO shed light on this issue. According to the WHO, in order to access to around 20 litres of water per day, the water source has to be located within 1,000 meters of the household and the total collection time should not exceed 30 minutes. Moreover, the WHO characterized the access to water as optimal when water is piped into home through multiple taps and 100 litres per person per day is likely to be ensured.990 On the other hand, physical accessibility seeks to ensure the physical security while accessing to water facilities and services.991 In the particular case of indigenous people, the lack of recognition of property rights over their territories and forced evictions have threatened the physical access of such population to water. In the case of X‚kmok K‚sek, the settlement where the displaced members of the Community lived, there was no access to safe sources of water. According to the testimony of community members during the public hearing, there was no water source near the settlement. This situation forced the members, especially in times of drought, to gather water from a cistern located around 7 km away.992 The second dimension is ‘economic accessibility’. Before analyzing this dimension, it would be worth determining in a first stage whether water is either a social or an economic good. ‘Water is a limited natural resources and public good for life and health’.993 This definition of water developed by the CESCR in General Comment No. 15 demonstrates the strong dependency of human life and development on the access to water resources. In the view of the Committee, water should be primarily considered as a social and cultural good, rather than 988 HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (2007), Par. 26; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 10 989 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 (c) (i) 990 Howard and Bartram, Domestic Water Quantity, Service Level and Health (WHO 2003) 22 – 26; HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (2007), Par. 26; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 10 991 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 (c) (i) 992 Inter-American Court of Human Rights, X‚kmok K‚sek Indigenous Community vs Paraguay (2010) Serie C no 214, Par. 195 993 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 8

248

The Link Between Human Rights and the Environment

an economic good.994 Indeed, water has been traditionally characterized either as common or as a public good due to its significance for life and the realization of human rights. In some cases, the access to and the use of this resource have belonged to all member of a community (common good) while in some other cases the right to property over this resource has been concentrated in the hands of the State which rules on the basis of ‘water rights’ the access to and the use of water resources for specific purposes and under specific circumstances (public good).995 This conception of water as public or common good has been changed in the last decades. The increasing and conflicting demands of water for different uses, water pollution and the inefficient management of this resource have led to shortage of safe water sources, thereby putting pressure on water prices.996 Given these facts, some authors have appealed to the incorporation of water as a natural capital into the economic analysis.997 One argument for this is that water use generates cost in terms either of its development or of forgone opportunities. As water demands increase, the cost of using or misusing water, in particular for development and economic purposes, needs to be assumed by users.998 Another argument is that the market place can choose the best allocation of water to generate wealth. In other words, the market decides the highest value applied to water on the basis of the purchasing power of users.999 From the point of view of the proponents, water markets and pricing mechanism will contribute to change the consumption patterns by reducing the demand for water as well as to prevent the wasteful and environmentally damaging uses of water resources.1000 The Dublin Statement on Water and Sustainable Development, adopted at the 1992 International Conference on Water and the Environment, proclaims in Principle 4 that managing water as an economic good contributes to the efficient and equitable use and encourages conservation and protection of water resource. Moreover, they point out that perception of water as an economic good and tradable commodity will prompt the participation of the private sector in 994 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 11 995 Dubreuil, The Right to Water (2006) 4; Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 37 – 39 996 Dubreuil, The Right to Water (2006) 4 997 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Pars. 15,22 998 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 118 999 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Pars. 22,87 1000 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 15; Salman and McInerney-Lankford, The Human Right to Water : Legal and Policy Dimensions (2004) 3

Substantive Rights

249

funding and efficient management of water resources.1001 Nevertheless, considering water as a mere economic good also has a considerable disadvantage since some functions and values linked to water cannot be measured in monetary terms.1002 A particular function that may be affected by water pricing and market imperfections is water used for life and survival of both humans and other beings.1003 In the context of the debate, the human right to water seeks to ensure the economic affordability of water resources for basic needs. According to the CESCR, ‘water and water facilities and services must be affordable.’1004 This means that the direct and indirect costs and charges associated with the production and utilization of water resources to meet basic needs must be affordable and ensure the realization of other rights.1005 Hence, payment of water and water services should not constitute an argument to deny the access to safe drinking water under any circumstances.1006 The last two dimensions of accessibility are non-discrimination and information accessibility. Within the framework of the right to water, the principle of non-discrimination ensures that vulnerable and marginalized groups of the population have access to water and water facilities and services on a nondiscriminatory basis.1007 This means on the one hand that poor households should not be charged with disproportional water expenses. On the other hand, this principle urges States to give particular priority to the allocation of limited public resources to guarantee the access of these groups to safe drinking water in cases where the population does not have access to water services or face discrimination in accessing to water resources.1008 Finally, accessibility includes the right to seek, receive and impart information concerning water issues held by public authorities or third parties.1009 The principle of non-discrimination and 1001 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 121; Salman and McInerney-Lankford, The Human Right to Water: Legal and Policy Dimensions (2004) 71 1002 Dubreuil, The Right to Water (2006) 4 1003 Dubreuil, The Right to Water (2006) 4 1004 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 (c) (ii) 1005 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 (c) (ii) 1006 Agenda 21, ch 18, Par. 8; HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (2007), Par. 27; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 10 1007 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 (c) (iii) 1008 HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (2007), Par. 24 1009 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 12 (c) (iv); Sub-commission guidelines for the realization of the right to drinking water and sanitation (2005), Section 8.3

250

The Link Between Human Rights and the Environment

the access to information ensure the effective realization of the right to water since they include all population groups. Apart from the factors that make up the normative content of the right to water, this right also contains freedoms and entitlements. The right to water grants individuals specific freedoms and entitlements. Freedoms within the framework of the right to water include the right to free and unrestricted access to water resources necessary for the fulfilment of the right to water as well as the right to be free from arbitrary and illegally interferences including arbitrary disconnections or the unlawful pollution of water resources. On the other hand, entitlements guarantee access to a minimum amount of safedrinking water needed for life and health as well as the right to a system of water supply and management that ensures the enjoyment of the right to water on a non-discriminatory basis.1010 The effective concretization of these freedoms and entitlements depends on the capacity and the will of States to comply with their obligations in relation to the right to water. On this point, the principle of sustainability plays a particular role. According to the CESCR, the concept of sustainability aims to ensure that present and future generations enjoy the right to water.1011 In fact, present and future availability of water depends on the sustainable management and planning of this resource.1012 Therefore, States must adopt comprehensive and integrated strategies and programs to guarantee sufficient and safe water, especially, in times where the overexploitation of this resource threats water supply.1013 d.

Obligations

States have the international duty to adopt effective measures towards the realization of the right to water on a non-discriminatory basis.1014 Traditionally, the compliance of economic, social and cultural rights has been considered nonmandatory since their implementation has been linked to political programs. However, this conception has been changed since the 1990s in the light of several General Comments made by the CESCR on the interpretation and realization of the rights contained in the ICESC. On the basis of these comments, it is clear that 1010 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 10; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 7 – 8 1011 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 11 1012 Declaration of the Stockholm United Nations Conference on the Human Environment (1972), principal 2 1013 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 28; Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 16 1014 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 1

Substantive Rights

251

the general as well as specific state obligations can be derived from the ICESC’s rights, thus empowering individuals to directly claim the enforcement of such rights.1015 In General Comment No. 15, the CESCR established general and specific obligations that States must comply to guarantee the enjoyment of the right to water. In relation to general obligations, the right to water is subject to a progressive realization since it has its basis in the right to adequate living standards (Article 11 (1)) and the right to health (Article 12) enshrined in the ICESCR.1016 Taking into account the State’s resource constraints, States have the obligation by virtue of Article 2 (1) of the ICESCR to allocate ‘the maximum of its available resources’ as well as to move towards the full realization of the right to water as expeditiously and effectively as possible. For these purpose, States are called on to undertake feasible and practicable steps including the adoption of legislative measures.1017 These obligations of progressive realization are complemented by those of immediate effect. The principal function of the obligations with immediate effect is to ensure that the rights enunciated in the ICESCR are not deprived of their raison d’Þtre.1018 Regarding the right to water, States have two immediate obligations. On the one side, States are urged to undertake concrete, deliberate and targeted steps irrespective of the State’s margin of discretion and availability of economic resources with the aim to ensure ‘the satisfaction of at the very least those minimum essential requirements of the rights set out in the ICESCR.1019 On the other side, States are compelled by virtue of Article 2 (2) of ICESCR to guarantee that the rights contained in the Covenant can be exercised without discrimination of any kind.1020 The scope of both obligations is analysed in detail below. In General Comment No. 15, the CESCR identified several core obligations with immediate effect.1021 This catalogue provides a practical guidance for States at the moment of undertaking measures and setting priorities for the allocation 1015 Laskowski Silke, Das Menschenrecht auf Wasser (2010) 157, 161 – 162 1016 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 17 1017 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 18; UNDP, Human Development Report 2006 – Beyond scarcity (2006) 60 and 77; UNGA, Right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2007), Par. 69; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 10, 25 – 26 1018 UNGA, Right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2007), Par. 80 1019 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 10; CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 17; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 25 – 26 1020 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 17 1021 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 37

252

The Link Between Human Rights and the Environment

of resources.1022 All these core obligations can be summarized in the obligation of States to ensure non-discriminatory access to, at very least, a minimum essential amount of safe drinking water for personal and domestic uses to prevent starvation and disease.1023 In addition to the obligations contained in the catalogue, an obligation with immediate effect constitutes, according to the Committee, the allocation of water required to meet the core obligations for each of the rights embodied in the Covenant.1024 In effect, access to water resources is an essential prerequisite for the satisfaction of at the very least ‘minimum essential levels of each of the rights’ enshrined in the Covenant, in particular the right to life, right to health and the right to food.1025 Due to the non-derogable character of core obligations, States cannot justify a violation of such obligation under any circumstances.1026 In this connection, the CESCR ratified in General Comment No. 15 the presumption that retrogressive measures taken in relation to the right to water are prohibited under the Covenant. Nevertheless, if such measures are taken, States must prove that those measures were introduced after the most careful consideration of all alternatives and that they are duly justified by comparison to the entirety of rights provided for in the Covenant, in the light of the full use of the State party’s maximum available resources.1027 The principles of non-discrimination and equity constitute crucial elements towards the realization of the right to water. In accordance with Articles 2 (2) and 3 of the ICESCR, States have the immediate obligation to ensure the right to water without discrimination and equality between the genders. This means that even in times of severe resources constraints, States have an immediate obligation to ensure that vulnerable groups of society have access to low-cost water supply.1028 Unfortunately, access to safe drinking has been negatively affected by discriminatory policies, laws and practices; exclusionary management of water resources; denial of security tenure; limited participation in decision-making processes related to the management and planning of natural resources, among others.1029 To prevent such situations, States must on the one hand adopt 1022 COHRE and others , Manual on the Right to Water and Sanitation (2007) 17 1023 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Pars. 6 and 37 (a); United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 12 1024 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 6 1025 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 37 1026 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 40 1027 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 19 1028 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, Par. 1) (1990), Par. 12; CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 13 1029 United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 14

Substantive Rights

253

measures to eliminate a de facto discrimination.1030 On the other hand, States must ensure that all members of society benefit from the allocation of water resources and investments in water facilities, rather than only benefitting a reduced privileged sector of the population.1031 Moreover, States have a special obligation to supply the necessary water and water facilities to vulnerable groups who do not have the sufficient economic means to cover their basic needs and to prevent discrimination in the provision of water and water services.1032 The CESCR identified in its General Comment No. 15 those vulnerable groups that have been traditionally impaired by discriminatory measures such as women, children, minority groups, indigenous peoples and refugees. In particular, States are called on to protect such groups from unlawful encroachment and pollution.1033 Apart from these general obligations, State has specific obligations in relation to the right to water. As with other human rights derived from the ICESCR, the right to water imposes upon States three specific obligations: the obligation to respect, to protect and to fulfill. With respect to the obligation to respect, States must refrain from interfering directly or indirectly with the enjoyment of the right to water. This means, for example, that States may not arbitrarily interfere with equal access to water or unlawfully reduce or pollute water resources.1034 Moreover, States may not enact laws or undertake discriminatory legal or other measures that restrict access of vulnerable groups to water.1035 In addition, States are required to protect individuals from arbitrary and unlawful interferences by third parties – including individuals, groups, corporations and other entities – with the enjoyment of the right to water. For this purpose, States are called on to adopt all necessary legislative and other measures to prevent third parties from denying equal access to water, or from polluting or overexploiting water resources.1036 This includes, for example, independent monitoring, public participation and the imposition of penalties.1037 Finally, the obligation to fulfill urges States to actively promote the realization of the right to water through the adoption of measures. The obligation to fulfill can be classified in three cate1030 1031 1032 1033 1034 1035

CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 14 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 14 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 15 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 16 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 21 HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (2007), Par. 22 – 36 1036 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 23; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 27 1037 WHO and others, Right to water (2003) 29

254

The Link Between Human Rights and the Environment

gories: the obligation to facilitate, promote and provide. The obligation to facilitate requires States to adopt measures to facilitate individuals the equal and non-discriminatory access to safe drinking water. The obligation to promote seeks to ensure the appropriate education of the population in relation to water issues. The obligation to provide urges States to ensure water supply in cases where individuals or groups are unable, for reasons beyond their control, to access safe drinking water.1038 The effective compliance of all these obligations leads to the realization of the right to water. Nevertheless, both general and specific obligations are in some cases subject to violation on the part of States. In accordance with international law, a violation of human rights has its roots in the failure of the State to act in good faith and to take necessary and feasible steps towards their realization.1039 States violate the right to water either through acts of omission or commission. Violations through acts of commission imply the direct action of State parties or other parties which are insufficiently regulated by the State. An example of this is the adoption of retrogressive measures incompatible with core obligations.1040 On the other hand, violations through acts of omission implies that States fail to adopt appropriate measures towards the full realization of the right to water; to have a national water policy ; and to enforce relevant laws.1041 In order to determine if those actions or omissions effectively lead to a violation of the right to water, the CESCR recommends in General Comment No. 15 to distinguish the inability from the unwillingness of the State to comply with its obligations in relation to the right to water. According to Article 11 (1), Article 12 and Article 2 (1) of the ICESCR, States are required to undertake the necessary measures to the maximum of its available resources. As a consequence, a State violates its obligation under the Covenant when it is unwilling to use the maximum of its available resources for the realization of the right to water. By contrast, according to the Committee, resource constrains constitutes a valid reason for the impossibility of a State to fully comply with its Covenant obligations provided that every effort has been made to use all available resources at its disposal to satisfy such an obligation.1042 In addition to these obligations, States have international obligations regarding the right to water. By virtue of Articles 2 (1), 11 (1) and 23 of ICESCR, States are called on to 1038 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 25 – 26, HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (2007), Par. 20; 1039 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 40 1040 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 42 1041 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 43 1042 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 41

Substantive Rights

255

recognize the role of international cooperation and assistance towards the full realization of the right to water.1043 This means that States are required to undertaken appropriate steps to assist and cooperate with other States to ensure access to safe drinking water. In General Comment No. 15, the CESCR specified those international obligations that States must comply in relation to the right to water. First, States have the obligation to refrain from undertaking arbitrary actions in its jurisdiction which interfere, directly or indirectly, with the enjoyment of the right to water in other countries.1044 The obligation to respect the enjoyment of the right to water in other countries plays a particular role in the context of cross-border watercourses. By virtue of this obligation, States are compelled to take joint action for the prevention of cross-border water pollution and the development of large-scale projects that can compromise access to water resources in other countries.1045 For instance, the construction of large dams has significantly modified the world’s rivers flows.1046 Taking into account that approximately 250 international watercourses provide water to 40 percent of the world’s population, States are called, in accordance with the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, to give priority to the satisfaction of basic human needs in the planning or implementation of large development projects including the provision of safe drinking water and water for basic subsistence food production.1047 Moreover, the Committee encourages States, depending on their availability of resources, to facilitate the realization of the right to water in other countries by providing other States with water resources, financial and technical assistance.1048 All these international obligation of States contribute to the realization of the right to water. In the international arena, there is a growing number of other international actors such as transnational corporations and international organizations which also have certain obligations in respect of the right to water.1049 The Charter of the United Nations emphasizes the significant role of inter1043 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 30 1044 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 31; WHO and others, Right to water (2003) 31 1045 Salman and McInerney-Lankford, The Human Right to Water : Legal and Policy Dimensions (2004) 77 1046 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 15; Scanlon John, Cassar Angela and Nemmes No¦mi, ‘Water as a Human Right?’ (2006) IUCN Environmental Policy and Law Pager No 51, 18 1047 Convention of Non-Navigational Uses of International Watercourses (1997), Articles 6 (3); Golay Christophe, The right to Water (CETIM, Critical Report No 6, 2009) 5 – 6, 10 1048 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 34; WHO and others, Right to water (2003) 31 1049 HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (2007), Par. 30

256

The Link Between Human Rights and the Environment

national cooperation in the promotion of human rights.1050 Moreover, Article 2 (1) of ICESCR imposes upon States the obligation to take steps, through international assistance and cooperation, especially economic and technical, towards the full realization of the rights enshrined in the Covenant.1051 In this context, the Committee highlighted in General Comment No. 2 on international technical assistance and measures that all United Nations organs and specialized agencies involved in any aspect of international development cooperation should ensure that the rights contained in the Covenants are duly taken into account in the implementation of development cooperation activities.1052 With respect to the right to water, States as members of international organizations, should ensure that their actions, policies and programs take the right to water into due account.1053 In this sense, United Nations agencies and international organizations concerned with water issues1054 are exhorted to closely work with States towards the implementation of the right to water at national level.1055 Furthermore, international financial institutions such as the IMF, World Bank and regional development banks are key actors in the implementation of the right to water since they have the political and economic power to influence the activities of national and local governments as well as of investors.1056 Accordingly, they should guarantee the incorporation of the right to water in their lending policies, lending agreements and other international measures.1057 Finally, States are urged to ensure that the right to water is included in the negotiation of international agreements. In General Comment No. 15, the CESCR exhorted States to integrate the right to water in international agreements. The Committee pointed out that those agreements concerning trade liberalization should not have a negative impact on a State’s capacity to ensure the supply of water services.1058 Despite of this appeal 1050 Charter of the United Nations United Nations, arts 55 (c) and 56; Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 29 1051 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 14 1052 CESCR, General Comment No 2, International technical assistance measures (Art. 22) (1990), Par. 2, 5 – 7, 8 (d); United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 29 1053 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 36, 60 1054 International organizations concerned with water issues are: WHO, FAO, UNICEF, UNEP, UN-Habitat, ILO, UNDP, the International Fund for Agricultural Development (IFAD) as well as international organizations concerned with trade such as the World Trade Organization (WTO) 1055 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 60 1056 WHO and others, Right to water (2003) 34 – 35 1057 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 36 1058 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 35: WHO

Substantive Rights

257

of the Committee, current proceedings before the International Centre for Settlements of Investment (ICSID) show growing concerns regarding the conflicting relationship between the obligation of States arising from bilateral investment treaties and their human rights obligation regarding the private supply of water services.1059 In case of Suez, Sociedad General de Aguas de Barcelona S.A. and Vivendi Universal S.A. vs the Argentine Republic, the investment dispute between the claimants and the Argentine Republic focused on the water distribution and sewage systems of a large metropolitan area, the city of Buenos Aires and surrounding municipalities. According to the tribunal, ‘those systems provide basic public services to millions of people and thus may raise a variety of complex public and international law questions including human rights considerations.’ Bearing in mind these facts, the ICSID Tribunal agreed for the first time to accept the participation of non-disputing parties as ‘amicus curiae’ (friends of the court). In this case, the tribunal concluded that the submission of amicus curiae brief was suitable since any decision of the tribunal would potentially impact on the operation of those systems and thus the public they serve.1060 This Order of the ICSID tribunal reaffirms the international obligation of international organizations to ensure that the right to water is given due attention.1061 An additional international obligation of States relates to the role of non-state actors in the effective realization of the right to water. Since private sector, particularly large-scale farming and industry, constitutes the major consumer of water resources, their activities have a decisive influence on the management of global water resources as well as on global access of the poor to safe drinking water.1062 Bearing this in mind, the CESCR concluded in that the right to water imposes upon States not only the specific obligation to guarantee that private

1059

1060 1061 1062

and others, Right to water (2003) 31; HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (2007), Pars. 63 – 64 ICSID, Suez Sociedad General de Aguas de Barcelona SA and Interagua Servicios Integrales de Agua SA vs Argentine Republic (2003) Case No ARB/03/17; ICSID, Suez Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA vs Argentine Republic (2003) Case No ARB/03/19; HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (2007), Par. 77 ICSID, Suez Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA vs Argentine Republic (2003) Case No ARB/03/19, Order in Response to a Petition for Transparency and Participation as Amicus Curiae (2005), Pars. 2 – 3 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 35 UNDP, Human Development Report 2006 – Beyond scarcity (2006) 14 – 15; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 30

258

The Link Between Human Rights and the Environment

actors do not interfere with the enjoyment of human rights in its jurisdiction but also to prevent their own citizens and companies from violating the enjoyment of the right to water in other countries.1063 All these international obligations strengthen the efforts towards the realization of the right to water worldwide.

e.

Water and the Extraction of Energy Resources

The major pressure on freshwater resources arises from water withdrawn for irrigation and industry.1064 In the particular case of industry sector, the production of goods and services depends on energy. In recent decades, water has become one of the most important resources for the generation of energy, especially hydroelectric power and, more recently, biomass energy. Hydroelectric dams produce about 6 per cent of the world’s energy and 25 per cent of its electricity.1065 As any other natural resources used for energy generation, water follows a life cycle. In effect, water is extracted from the environment, is then transformed into energy and finally it returns to the environment often in form of effluents.1066 This process puts significant pressure on water sources and sinks. Since the increasing demand of energy to support economic development has boosted water demands, the availability and quality of water resources for other uses has been seriously compromised.1067 With respect to the availability of water, the increasing demand of energy has lead to a water scarcity. This means that the amount of water withdrawn for industrial activities, i. e. extracted from water sources such as lakes, rivers and groundwater, exceeds water supplies in such as a way that other human and ecosystem requirements can no longer be met.1068 For instance, large dams have given rise to the decrease of the water volume in rivers, thereby causing water shortage and serious impact on ecosystems.1069 Moreover, the extraction of energy resources has exacerbated discharges of pollutants and the generation of waste. Given these facts, energy generation has not only brought about a decline 1063 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 33 1064 Secretariat of the Convention on Biological Diversity, Global Biodiversity Outlook 3 (2010) 55 1065 McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 33 1066 Commission of the European Communities, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final, 16 – 17 1067 Howard and Bartram, Domestic Water Quantity, Service Level and Health (WHO, 2003) 23 1068 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 15; EEA, Sustainable use and management of natural resources, (2005), 6, 26 1069 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Par. 6

Substantive Rights

259

in water quality but has also compromised the capacity of the environment to absorb discharges and emission of pollutants or waste.1070 In fact, sources of pollution such as oil leaks and spills and agricultural chemicals for the production of feedstock for biofuels, have not only contaminated surface water and groundwater but also changed the chemical composition of water and other environmental media including air and soil.1071 The effects of water pollution have been reflected in a gradual degradation of the ecological quality of water, reduction of the quality of drinking water and toxic consequences for flora and fauna.1072 For example, the extraction of energy resources has a negative impact on fisheries. Indeed, water pollution results in changes to the food chains, modification in the size and age structure of the fish population due to the elimination of target species and a loss of biodiversity.1073All these facts clearly show that the use of water for energy generation jeopardizes the quality and quantity of water resources. In this context, it is necessary to analyze in depth the extent to which the realization of the right to water is affected by the extraction of energy resources, in particular the exploitation of fossil fuels, the generation of hydroelectric power and the production of biomass. Each stage of oil development – exploratory drilling, production, transportation and refining – has direct consequences on water sources. During exploratory drilling, the construction of infrastructure and facilities as well as the drilling of wells bring about pollution and the alteration of the physical environment including existing water courses and drainage.1074 In the production stage, groundwater is affected by pollution from produced water – brine water brought up with oil and gas – drilling and well treatment fluids, process and drainage water, sewage as well as the leaching of toxic substances from the soil into groundwater.1075 Moreover, accidental oil spills and leaks during the production and transportation phases have compromised the quantity and quality of water resources and have negatively impacted vegetation and wildlife.1076 In particular, sensitive natural areas such as rainforests, mangroves 1070 EEA, Sustainable use and management of natural resources, (2005), 5, 6, 10 1071 Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world (1997), Pars. 39 and 51 1072 EEA, Sustainable use and management of natural resources, (2005), 28 1073 EEA, Sustainable use and management of natural resources, (2005), 6, 29, 31 1074 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 56 1075 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 56 1076 African Commission of Human and Peoples Rights, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Enderois Welfare Council vs Kenya (2010) no 276/2003, Par. 14; Inter-American Commission on Human Rights, ‘Report on the Situation of Human Rights in Ecuador’ OEA/Ser.L/V/II.96 (1997), ch

260

The Link Between Human Rights and the Environment

swamps and marine environments, are affected by the exploitation of fossil fuels. In the case of mangroves, dredging or digging activities release acid sulphates of marine clay soils to the air and cause serious impact on fisheries and irrigation.1077 All these environmental pressures, caused by by-products and toxic wastes from the extraction of fossil resources on water resources have reduced the availability and quality of this natural resource and consequently compromised the realization of the right to water. The right of individuals to access to safe drinking water for personal and domestic uses may be affected by the exploitation of fossil fuels, especially, when the different stages of operation do not follow international environmental standards. In the ’Report on the Situation of Human Rights in Ecuador’, the Inter-American Commission of Human Rights observed that oil development and exploitation had caused changes to the physical environment and generated substantial quantities of toxic by-products and waste. According to the reports of representative communities, the inhabitants living near oil development sites in the Amazonia region of Ecuador had been exposed to toxic by-products of oil exploitation in their drinking, cooking and bathing water. In their view, this situation had caused serious impact on the health of the members of these communities including skin diseases, rashes, chronic infections and fevers or gastrointestinal problems. Children in particular suffered frequent bouts of diarrhea.1078 This observation of the Commission was confirmed by the InterAmerican Court of Human Rights in the case of Saramaka vs Surinam. The court concluded that the extraction activities of certain natural resources which are not traditionally used by members of indigenous communities such as mining or the extraction of oil, affect natural resources essential for the survival of indigenous people, in particular the waterways.1079 Additionally, the African Commission of Human and Peoples Rights also dealt with this issue. In the Ogoni case, the Commission determined that the exposure of Ogoni population to polluted water originating from the exploitation of oil reserves caused serious short and long-term health effects. As a result, the Commission held Nigeria responsible for the violation of its obligations to respect and protect the right to VIII; Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 56; McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 35; EEA, Sustainable use and management of natural resources, (2005), 41 1077 Lang Weaver, ‘Sustainable development in the oil sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 58 1078 Inter-American Commission on Human Rights, ‘Report on the Situation of Human Rights in Ecuador’ OEA/Ser.L/V/II.96 (1997), ch VIII 1079 Inter-American Court of Human Rights, Saramaka People vs Surinam (2008) Interpretation of the Judgment Serie C no 185, Pars. 126 and 155

Substantive Rights

261

clean environment (Article 24 of the African Charter of Human and Peoples Rights) and the right to health (Article 16 of the African Charter of Human and Peoples Rights) as the State participated directly in the contamination of essential environmental media including air, water and soil by disposing toxic waste into the environment and local waterways in violation of international environmental standards.1080 On this basis, it is possible to conclude that water pollution caused by the exploitation of fossil fuels jeopardizes the access of individuals to safe drinking water for personal and domestic uses as well as the realization of other human rights which depend on access to water and water services. Apart from fossil fuels, another form of energy generation that may compromise access to water resources is hydroelectric power. Hydropower currently constitutes the largest renewable source of energy.1081 Economic growth and the need to reduce dependency on imported fossil fuels have led to the construction of dams to cover the growing energy demands. By the end of the 20th century, around 45,000 dams had been built in over 130 countries.1082 According to estimates, at least two trillion US dollars had been invested worldwide in the construction of large dams over the last century.1083 The principal function of this long term and strategic investments is to meet needs for water and energy services. An additional benefit of the construction of large dams is the generation of additional incomes for energy sold and for the production of energy-intensive goods. Although this kind of energy generation has been characterized as comparatively clean and low-cost, large dams have a severe environmental impact.1084 On the one hand, the construction of dams and the subsequent inundation affects terrestrial and aquatic ecosystem and biodiversity alike. Flooding a reservoir leads to the elimination of flora and fauna, land degradation, alteration of hydrologic functions and changes to land use. In particular, the loss of vegetative cover gives rise to the decrease of water quality.1085 On the other hand, hydropower has been perceived as a source of clean energy with positive atmospheric effects. Unfortunately, new findings have 1080 African Commission of Human and Peoples Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Pars. 2, 50 1081 Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 86 1082 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 8 1083 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 11 1084 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 11, 14 1085 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 75; WEHAB Working Group, A Framework for Action on Energy (2002)

262

The Link Between Human Rights and the Environment

shown that rotting vegetation and carbon inflows from catchments produces GHG emissions. According to the WCD, a first estimate suggests that the gross emissions from reservoirs may amount between 1 and 28 percent of GHG emissions.1086 In addition, dams fragment and transform the aquatic and terrestrial ecosystem, thereby causing the degradation of watershed ecosystems. The blockage of sediments and nutrients, the re-regulation of stream flow and the elimination of the natural flood regime have significantly affected fisheries. In fact, dams constitute one of the principal reasons for the extinction or endangering of about 20 per cent of the world’s freshwater fish species.1087 All these effects resulting from dam construction have caused the degradation of riverine ecosystems and land use changes. This has seriously jeopardized the realization of the right to water. Dams have had negative consequences on riverine ecosystems as well as on the use of land. The realization of the right to water depends on functioning ecosystems. Watersheds provide several ecosystem services such as nutrient recycling, water purification, soil replenishment and flood control.1088 All these functions ensure optimal water quality and fishery production. Unfortunately, dams impact the capacity of ecosystems to provide goods and services including safe drinking water or fish. For example, the partial closing of the river channel by the Porto Primavera dam in Brazil obstructed fish migration, thereby affecting the upstream fish catch by 80 per cent.1089 Bearing in mind that fish constitute a critical source of animal protein for more than a billion people as well as a source of livelihood among rural population in developing countries, States have a duty, by virtue of Article 1 (2) of the ICESCR, to ensure that nobody is deprived of its own means of subsistence.1090 This means that according to the interpretation of the CESCR in General Comment No. 15, access to water to secure one’s livelihood, in this case for fish production, must be guaranteed by the States. Although the scope of protection of the right to water does not cover the use of water for ecological purposes, States are called on to ensure that dam 1086 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 75; Scanlon John, Cassar Angela and Nemmes No¦mi, ‘Water as a Human Right?’ (2006) IUCN Environmental Policy and Law Pager No 51, 18 1087 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 16, 84; McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 1088 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 16 1089 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 84 1090 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 84; CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 7

Substantive Rights

263

projects and their implementation give priority to the use and quality of water for ecological purposes to guarantee the realization of the right to water and ensure livelihoods. In addition, flooding a reservoir leads to changes in land use. This implies, among other changes, the physical displacement of the population living in or near the reservoir or other protected areas.1091 Displaced people are not able to access essential resources which support their traditional means of subsistence including land and water. With respect to water, the lack of access to safe drinking water has a detrimental effect on the health conditions of resettlers. In tropical areas, people are exposed to numerous water-borne diseases associated with reservoirs.1092 Moreover, inundation and resettlement deprives people of land- and riverine-productive activities. Since agricultural production, fisheries, livestock grazing depends on the access to water, States are urged, within the framework of the right to water, to ensure the access to water of resettled for livelihood. On this basis, the right to water plays a particular role in the protection of the access to safe drinking water not only for personal and domestic uses but also for ensuring the livelihood of people affected by dam construction. Finally, the production of feedstock for biofuels also affects access to safe drinking water for personal and domestic uses. The following analysis is part of a publication made by the author in the European Journal of Legal Studies.1093 In the context of bioenergy, water is one of the most important elements for the production of feedstock for biofuels. Unfortunately, this activity has had a negative impact on water quality and quantity where these projects are performed. Drivers that have had a considerable effect on water availability and quality are crop type, irrigation and cultivation methods as well as the volume of water located in a specific region (e. g. semi-arid or water abundant regions)1094. All these factors have given rise to strong competition for access to water and eventually influenced the fulfilment of the human right to access to water. The fulfilment of the right to access to water as well as the production of feedstock for biofuels depends on the availability of water. During the production of agrofuels, factors that influence water availability are the type of crop, the uses of water, efficiency of irrigation methods and the geographical dis1091 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 102 – 103 1092 World Commission on Dams, Dams and Development: A new framework for decisionmaking (2000) 118 1093 These analysis was published by the author in L¦on Moreta Mar†a A., ‘Biofuels – A Threat to the Environment and Human Rights? An Analysis of the impact of the production of feedstock for agrofuels on the rights to water, land and food’ (2011) vol 4 issue 1 European Journal of Legal Studies 102 – 120, 109 – 111 1094 De Fraiture Charlotte and others, ‘Biofuels and implications for agricultural water use: blue impact of green energy’ (2008) Water Policy 10 Supplement 1, 71, 73

264

The Link Between Human Rights and the Environment

tribution of water. For instance, the average requirement of water necessary for the production of one litre of agrofuels is 2,500 l of crop evapotranspiration1095 and 820 l of irrigation water.1096 Nevertheless, this average can vary from region to region and from crop to crop. While the volume of water needed for irrigation of rain-fed rapeseed crops in Europe is minimal, the amount of water required for the production of maize for a litre of ethanol in China requires on average 2,400 l of water for irrigation.1097 In addition to these factors, the geographical distribution of water as well as population and economic growth exert an added influence on water availability in a specific geographic area. For instance, China and India are already suffering from water scarcity. This problem has been exacerbated in the last few decades since both countries are experiencing strong economic growth supported by an energy-intensive industrialization process. In this scenario, the production of biofuels constitutes for these countries a crucial strategy to secure energy supplies and to reduce their dependency on imported oil. However, at the same time this strategy puts significant pressure on the already highly exploited or overexploited water sources.1098 Additionally, the production of feedstock for biofuels may compromise water quality. Water quality has also been affected by the production of feedstocks for biofuels. The use of fertilizers or pesticides in agrofuel production has had a significant environmental impact not only on surface and ground water but also on soil productivity as well as ecological systems and services that depend on water.1099 This, in turn, has a negative effect on the access of people to safe and clean water. According to a report of the United States National Research Council (NRC), the impact of the increasing large-scale use of fertilizers in biofuels crops is an important concern. Fertilizers and pesticides are chemicals which can leach into water bodies and affect water quality. However, the magnitude of the environmental impact depends on the amount of fertilizers and pesticides required for each type of crop.1100 For example, in the US, corn crops require more fer1095 Evapotranspiration (ET) is referred as ‘the combination of two separate processes whereby water is lost on the one hand from the soil surface by evaporation and on the other hand from the crop by transpiration’ in Allen Richard G and others, ‘Crop evapotranspiration – Guidelines for computing crop water requirements’ (1998) FAO Irrigation and drainage paper 56, p accessed 2 June 2011 1096 De Fraiture Charlotte and others, ‘Biofuels and implications for agricultural water use: blue impact of green energy’ (2008) Water Policy 10 Supplement 1, 71 1097 De Fraiture Charlotte and others, ‘Biofuels and implications for agricultural water use: blue impact of green energy’ (2008) Water Policy 10 Supplement 1, 79 1098 De Fraiture Charlotte and others, ‘Biofuels and implications for agricultural water use: blue impact of green energy’ (2008) Water Policy 10 Supplement 1, 68 1099 WEHAB Working Group, A Framework for Action on Energy (2002) 10 1100 The National Research Council, ‘Water Implications of Biofuels Production in the United States’ (Report in Brief, 2007)

Substantive Rights

265

tilizers and pesticides per hectare than any other agrofuels feedstock so that a higher concentration of nitrogen contaminates groundwater and streams provoking oxygen-starved ‘dead zones’.1101 The increasing use of chemicals in agrofuel production has causes environmental effects including erosion, sedimentation, less oxygen in ecosystems and higher concentrations of chemicals in drinking and irrigation water. This has threatened access to safe drinking water and the realization of various human rights. In this context, States are called on to adopt measures to enforce the fulfilment of the right to access to water. Certain mechanisms were developed at international level for this purpose. The production of feedstock for biofuels poses a particular challenge for States. On the one hand, States are called upon to ensure energy supplies and economic development. On the other hand, States have the international obligation to respect, protect and fulfil human rights.1102 With respect to the right to water, the compliance of both duties by the State can be ensured provided that this right is anchored in national legislation and the implementation of extraction projects is performed in accordance with international standards. Many states have been taking steps to ensure citizens’ access to water through the inclusion of provisions regarding the right to access to water in domestic law. This legal basis, in turn, enables individuals and communities to submit claims to national courts in case the right to access to water is breached, especially when large-scale projects adversely affect the environment and are detrimental to peoples’ living conditions.1103 In addition, several measures have been developed at international level to ensure that the implementation of an extraction project by the State or other third party do not interfere with the fulfilment of the right to water. These measures comprises the participation of those affected in the decision-making process governing the project and the management of water resources as well as the timely and full disclosure of information on the proposed project.1104 According to General Comment No. 15, the right to participate in decision-making process that may compromise the exercise of the right to water must be incorporated as an integral element of policy, programs or strategy concerning water.1105 Before an extraction project is developed or implemented, States are 1101 Engelhaupt Erika, ‘Biofuling: Water Problems’ (2007) vol 41 issue 22 Environmental Science & Technology, 7593 – 7594 1102 Nowak, Einführung in das internationale Menschenrechtssystem (2002) 36, 62; Kälin and Künzli, Universeller Menschenrechtsschutz (2008)110 1103 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Pars 55 and 56; Dubreuil, The Right to Water (2006) 23 – 25; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 17 1104 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 56 1105 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 48; Sub-

266

The Link Between Human Rights and the Environment

urged to engage the participation of government, affected communities and of the extraction sector to ensure a sustainable water resources management and the access to water for personal and domestic uses during project development.1106 Additionally, affected individuals have the right to full and equal information concerning water issues held by public authorities or third parties.1107 A further step towards the realization of the right to water at the international level constitutes the establishment of an Independent Expert on the Issue of Human Rights Obligations Related to Water by the Human Rights Council in Resolution 7/22 in March 2008. This expert has the main mandate to open a dialogue with all interested parties with the aim to exchange views on best practices on access to safe drinking water and sanitation and to undertake a study to clarify the content of human rights obligations governing access to safe drinking water and to make recommendations towards the realization of the MDGs, in particular of Goal 7.1108 f.

Conclusion

Freshwater is a limited natural resource which sustains life and contributes to the production of biological resources. Globally, only 42,700 km3 of freshwater are really accessible and around 3.800 km3 of water are annually extracted from lakes, rivers and aquifers. In the next few years, it is expected that water withdrawal will increase. Driving forces that influence this increase are population growth, climate change and mismanagement of water resources. The combination of all these factors leads to water stress and pollution. Since the generation of energy to support economic development depends on water resources, the realization of the right to water has become an important issue in the international agenda. The human right to water has not been explicitly anchored in international human rights treaties. However, the existence of this right is unquestionable. The right to water is implicitly contained in several provisions of international human rights instruments, for example, in the right to health, to adequate living commission guidelines for the realization of the right to drinking water and sanitation (2005), Section 8.1 1106 Dublin Statement on Water and Sustainable Development, Principal 2; WHO and others, Right to water (2003) 9; Salman and McInerney-Lankford, The Human Right to Water : Legal and Policy Dimensions (2004) 75; COHRE and others , Manual on the Right to Water and Sanitation (2007) 93; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 12, 16 1107 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 48; Subcommission guidelines for the realization of the right to drinking water and sanitation (2005), Section 8.3 1108 De Albuquerque, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation ( 2009), Par. 7 (a), (b) and (c)

Substantive Rights

267

standards or the right to food. In this connection, water constitutes also a precondition for the effective realization of other human rights. In fact, water is necessary for a healthy nutrition, production of food and sanitation. Another evidence of the existence of the right to water is the inclusion of water in soft-law instruments such as in Principle 2 of the Stockholm Declaration on the Human Environment which defines water as a natural resource that requires to be safeguarded through careful planning or management for the benefit of present and future generations. In 2010, the UNGA recognized in its Resolution 10967 the human right to ‘clean water’. Despite the non-binding character of this resolution, it evidences the effort of the international community towards the concretization of the right to water as a stand-alone human right. All these factors confirm the existence of the right to water in modern international law ; however, the normative content and scope of this right is still being developed. In General Comment No. 15, the Committee on Economic Social and Cultural Rights established that water should be adequate for human consumption. Three main factors guarantee the adequacy of water: availability, quality and accessibility. The availability of water resources varies from region to region depending on the levels of precipitation, the degree of the extraction of groundwater reserves and changes in climate conditions. Furthermore, water availability is directly influenced by the different uses of water. The major demand for water is concentrated in agriculture, industry and the domestic sector. Another factor key for the realization of the right to water is quality. According the Committee, water for personal and domestic uses must be safe and acceptable. In order to comply with these requirements, international standards have been developed such as the ‘WHO Guidelines for Drinking-water Quality’. ‘Accessibility’ is the last factor essential for the realization of the right to water. This means that States have the duty to ensure the access of everyone to water and adequate facilities and services in a non-discriminatory basis. In addition, individuals are granted with freedoms and entitlements derived from the right to water. Freedoms within the framework of the right to water include the right to free and unrestricted access to water resources and the right to be free from arbitrary and illegally interference. On the other hand, entitlements guarantee access to a minimum of safe-drinking water needed for life and health to a system of water supply and management that ensures the right to water on a nondiscriminatory basis. In addition, the right to water imposes general and specific obligations on States. Considering resources constrains, States are called on to undertake measures to ensure the access to safe drinking water in a non-discriminatory basis. In addition, States have three specific duties: respect, protect and fulfill. Regarding the obligation to respect, States must refrain from interfering directly or indirectly with the enjoyment of the right to water, for example by restraining

268

The Link Between Human Rights and the Environment

equal access to water or by polluting water resources. Furthermore, access to safe drinking water must be protected from arbitrary and unlawful interference by third parties through the adoption of legislative and other measures. With respect to the obligation to fulfill, States are called on to actively promote the realization of the right to water. Finally, States have international obligations regarding the right to water on the basis of international cooperation and assistance. In the last few decades, water has constituted one of the most important resources for the generation of energy. Hydroelectric power and, most recently, biomass energy require water for their generation. Unfortunately, this has led to water scarcity and pollution, thereby jeopardizing the quality and quantity of water resources. During the exploitation of fossil fuels, each stage of oil development has a direct impact on water sources, especially when extraction activities do not comply with international environmental standards. Both the Inter-American Court of Human Rights and the African Commission of Human and Peoples Rights have dealt with the consequences of water pollution from extraction activities on access to safe drinking water for personal and domestic uses. Hydroelectric power is another form of energy generation that has compromised the access to water resources. Currently, it is the largest renewable source of energy. Nevertheless, the construction and operation of dams have resulted in a degradation of riverine ecosystems and in changes to land use. This, in turn, has led to the displacement of the population living in or near reservoirs or other protected areas. Finally, the production of feedstock for biofuels has also had a negative effect on the quality and quantity of water for personal and domestic uses. On the one hand, the availability of water can be affected depending on the type of crop, the uses of water, the efficiency of the irrigation methods and geographical water distribution. On the other hand, the water quality can be compromised by the use of fertilizers or pesticides in the production of agrofuels. This has had a significant environmental impact on surface water, groundwater, soil productivity and ecosystems. Against this background, States and all the stakeholders involved in the extraction of energy resources are called on to guarantee access of the population to water by avoiding or reducing the negative impact – depletion and contamination – on water resources. Therefore, the international standards, national legislation, access to effective judicial mechanisms and the implementation of social and environmental impact assessments are important preconditions to ensure the availability and quality of water.

Procedural Rights

II.

269

Procedural Rights

Within the framework of international environmental law, procedural rights were initially developed in order to confront the potential consequences of crossborder environmental problems. Three procedural duties to inform, warn and consult govern inter-State relations over environmental issues.1109 In effect, prevention and control of cross-border environmental problems strongly depend on information exchange and effective cooperation between States. Moreover, States are obliged to warn other States in case of acute environmental hazards as well as to enter into consultations to limit environmental damage.1110 Apart from these functions, procedural safeguards in international environmental law play a significant role in the concretization of substantive provisions. An example of this is the materialization of the precautionary principal through the implementation of EIAs to prevent potential hazards.1111 With the development of international environmental law, the role of these procedural safeguards has, however, gone beyond the scope of environmental issues at inter-State level. Currently, these safeguards have been additionally integrated in the protection of individuals against environment-related actions or omissions of the State. The rights of access to information, to participate in the decision-making process and of access to justice have their roots in Principle 1 of the Stockholm Declaration. They were subsequently developed in other international environmental law instruments such as the Brundtland Commission Report1112, the World Charter of Nature1113, the Rio Declaration1114, Agenda 211115 and the Report of the General Assembly’s Special Session in 19971116. The corollary of these instruments constitutes the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, better known as the Aarhus Convention. This Convention was established within the framework of the United Nations Economic Commission for Europe (UNECE).1117 Even through this European convention was developed within the 1109 Cullet Philippe, ‘Definition of an Environmental Right in a Human Right Context’ (1995) vol 13 Netherlands Quarterly of Human Rights 25 – 40, 37 1110 Epiney and Scheyli, Umweltvölkerrecht (2000) 120 1111 Epiney and Scheyli, Umweltvölkerrecht (2000) 119 1112 World Commission on Environment and Development, Our Common Future (1997) ch 12, Par. 56 – 93 1113 World Charter for Nature (1982), Pars. 16 and 23 1114 Declaration on Environment and Development (1992), principles 10 and 22 1115 Agenda 21, ch 8, 12, 40 1116 UNGA, Programme for the Further Implementation of Agenda 21 (1997), Par. 23 – 24 1117 The Aarhus Convention is currently binding on forty-seven European and Central Asian states. According to Article 19 (3) of the Convention, any state, member of the United Nations, may accede to it.

270

The Link Between Human Rights and the Environment

context of international environmental law, it grants individuals concrete procedural entitlements to defend their rights from the consequences of environmental damage. In this sense, this convention constitutes a model of forming and substantiating human rights procedures in ecological matters.1118 In addition to the development of these rights in international environmental law, several international human rights instruments contain provisions related to the right to information and of access to remedies. Procedural rights are an integral part of Article 9 of the Universal Declaration of Human Rights. The right to access to information is guaranteed in Article 19 (2) of the International Covenant on Civil and Political Rights (ICCPR) and in regional instruments including in Article 10 of the European Convention on Human Rights and in Article 19 of the American Convention on Human Rights. Similarly, Article 9 of the African Convention on Human and Peoples Rights provides for a ‘right to receive information’. The access to remedies is also recognized, either in the form of the right to access to a court (Article 14 of the ICCPR, Article 6 of the European Convention on Human Rights and Article 8 (1) of the American Convention on Human Rights), or in the form of the right to access to effective remedy against violations of fundamental rights ensured by international human rights instruments, constitution or national law (Article 2 (3) of the ICCPR, Article 13 of the European Convention on Human Rights, Article 25 of the American Convention on Human Rights and Article 7 of the African Convention on Human and Peoples Rights).1119 These provisions evidence the existence of procedural rights in a human rights context. Additionally, regional human rights courts have based their rulings on environmental issues and the violation of human rights on these international instruments. Procedural rights have a dual function. They contribute to the inclusion in the decision-making process of individuals and groups affected by pollution while at the same time restricting the discretionary power of decision-makers.1120 On the one hand, this encourages hand decisions favorable to the environment, the realization of human rights and respect for the rule of law. On the other hand, this lends legitimacy and acceptance to projects and activities.1121 In this context, 1118 Shelton Dinah, ‘ Human Rights, Health & Environmental Protection: Linkages in Law & Practices’: A Background Paper for the World Health Organization’ (2002) Health and Human Rights Working Paper Series No.1, 10; Beyerlin Ulrich, ‘Umwelschutz und Menschenrechte’ (2005) vol 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 525 – 542, 539 1119 Handl, ‘Human Rights and the Protection of the Environment’ , in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 323 – 324 1120 Cullet Philippe, ‘Definition of an Environmental Right in a Human Right Context’ (1995) vol 13 Netherlands Quarterly of Human Rights 25 – 40, 36 1121 Shelton, ‘A Right-based Approach to Conservation’ in Greiber (ed), Conservation with Justice: A Right-based Approach (2009) 14

Procedural Rights

271

procedural rights constitute decisive instruments to protect individuals and groups from environmental degradation.1122 The aim of the following analysis is to elucidate the role of procedural rights in the extraction of energy resources and to demonstrate that these environmental rights have been consolidated and enforced within the area of human rights.

1.

The Right to Participation

The term ‘participation’, ‘public participation’, ‘citizen’s participation’ and ‘popular participation’ refers to the inclusion of civil society into all stages of the policy-making process including problem identification, decision, administration, design, management and implementation.1123 Participation influences democracy at two levels: political and economic. At a political level, participation empowers individuals and groups to actively take part in decisions that can affect their interests as well as to control those who exercise authority in their name.1124 Public participation has been recognized in several human rights instruments. The basic right to public participation is anchored in Article 21 of the Universal Declaration of Human Rights. At regional level, a general participatory right is not recognized within the European human rights system. Article 3 of Protocol No. 1 of the European Convention on Human Rights only grants citizens the right to participate in regularly scheduled elections.1125 By contrast, a general right to participation is expressly provided in Article 25 of the ICCPR, Article 23 of the American Convention on Human Rights and in Article 13 of the African Convention on Human and Peoples Rights.1126 This legal recognition of the right of individuals and groups to be involved in decision-making process affecting their interest prevents States from adopting decisions which may ar1122 Beyerlin Ulrich, ‘Umwelschutz und Menschenrechte’ (2005) vol 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 525 – 542, 542 1123 Marks Stephen P, ‘Health from a Human Rights Perspective’ (2003) accessed 16 August 2011; Vargas Vela de Eiden Talia, Environmental Policy under Political Transition: The Peruvian Mining Sector and the Yanacocha Gold Mine (2006) 34 1124 World Bank, World Development Report 2000/2001 (2000) 88; Vargas Vela de Eiden Talia, Environmental Policy under Political Transition: The Peruvian Mining Sector and the Yanacocha Gold Mine (2006) 33 1125 Article 3 of Protocol No. 1 of the ECHR commits to member states to ‘hold free elections (…), under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature 1126 Handl, ‘Human Rights and the Protection of the Environment’ , in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 320; Shelton, ‘The Environmental Jurisprudence of International Human Rights Tribunals’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 6

272

The Link Between Human Rights and the Environment

bitrarily interfere with their rights. With respect to environmental issues, participation rights play a significant role in environmental protection and particularly in the development of extraction projects since these rights empower resource users to participate in decisions related to resource allocation conflicts.1127 At an economic level, participation of civil society refers to a fair involvement in the control of productive assets as well as the exercise of collective bargaining power.1128 Relating to the extraction projects, participation rights have two main economic functions: legitimization and redistribution. On the one hand, they provide governmental policies and development projects with long-term stability. In other words, the acceptance and legitimatization of an extraction project by all stakeholders involved secure the implementation of the project and the capital invested in it. Moreover, participatory rights ensure an equitable distribution among all stakeholders of the resources obtained from the implementation of such projects. In the light of these perspectives, the rights to participation guarantee that individuals and groups be actively involved, informed and consulted over the development, management, implementation of policies and projects that may affect their interests. This, in turn, leads to a successful management of energy resources, improves the quality of decisionmaking and counterbalances the economic power of private interests, especially in the extraction of natural resources.1129 Participation rights as human rights have both a substantive and a procedural nature. On the one hand, rights of public participation are implicit in numerous human rights such as the right of individuals to take part in government, have equal access to public services and the freedom of expression, assembly and association. On the other hand, these rights also provide procedural safeguards: the right to information, the right to participate in decision-making process and benefit sharing.1130 These procedural rights are crucial in the development and implementation of extraction projects which compromise the access of other stakeholders to natural resources.

1127 Beyerlin Ulrich, ‘Umwelschutz und Menschenrechte’ (2005) vol 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 525 – 542, 537; Cotula, The Right to Food and Access to Natural Resources (2008) 30 1128 Vargas Vela de Eiden Talia, Environmental Policy under Political Transition: The Peruvian Mining Sector and the Yanacocha Gold Mine (2006) 34 – 35, 37 1129 Kravchenko, ‘Environment’ in Encyclopedia of Human Rights II (2009) 521 – 522 1130 Zohra Ksentini, Review of further developments (1994) Par. 220; Saladin, ‘Public Participation in the Era of Globalization’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 58 – 61; Cotula, The Right to Food and Access to Natural Resources (2008) 14, 30

Procedural Rights

a.

273

The Right to Access to Information

The right of individuals and groups to access to relevant information held by authorities or state bodies constitutes a crucial cornerstone of democracy and the principle of public participation.1131 In an environmental context, information particularly plays a significant role since a population affected by the consequences of environmental damage or development projects depends on information in order to assess the risks and to make proper decisions. In this context, the Special Rapporteur on Human Rights and the Environment for the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Fatma Zohra Ksentini, established specific requirements that information must meet in order to realize the right to access to information. According to the Rapporteur : ‘[…], the right to information relating to the environment requires that information be relevant and comprehensible; that it be provided in a timely manner ; that the procedures to obtain information, if established, be simple and brief; that the cost to individuals and groups be reasonable; and that it be available across State boundaries’1132

The right of information vests individuals and groups with rights as well as imposes duties on States. In an environmental context, the right to information includes: the right of citizens to obtain information, the duty of the State to inform the public and the duty to regularly and systematically collect and disseminate information. With respect to the right to obtain information on environmental issues, a fundamental question arises as to whether the right to receive information is linked to the freedom of opinion and expression1133. Regional human rights tribunals dealt with this question; however, the answer varied from court to court. The European Court of Human Rights has restrictively interpreted the right to receive information enshrined in Article 10 (1) of the European Convention on Human Rights. In the case of Leander vs Sweden, the petitioner alleged a violation of Article 10 (1) of the European Convention on Human Rights because he was denied access to a file used to deny him employment. The Court unanimously concluded that the right to freedom to receive information basically prohibits States from restricting a person from receiving information that others wish or may be willing to impart to him. However, it does not grant 1131 Zohra Ksentini, Review of further developments (1994) Par. 209; Handl, ‘Human Rights and the Protection of the Environment’ , in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 319 1132 Zohra Ksentini, Review of further developments (1994) Par. 204 1133 The right to freedom of expression is enshrined in Article 19 of the Universal Declaration of Human Rights, Article 19 (2) of the ICCPR, Article 10 (1) of the ECHR, Article 13 of the ACHR and Article 9 or the AfCHPR.

274

The Link Between Human Rights and the Environment

individuals a right of access to a record on his personal position nor does it impose an obligation on the government to impart such information to the individual.1134 In cases related to the environment, this view has been corroborated by the Court. In Guerra and Others, the petitioners accused Italy of failing to inform the public of the risks and the measures to be taken in case of a major accident. The Court had to decide whether Article 10 (1) of the European Convention on Human Rights which ensure the right to freedom of expression and ‘to receive information (…) without interference by public authorities’, could be interpreted as a positive obligation of the State to disclose information to the public on environmental matters such as hazards of industrial activities, safety measures, emergency planning among others.1135 The Court rejected the appellants’ claim by holding that the freedom of Article 10 (1) did not impose on a State a positive obligation to collect and disseminate information of its own motion.1136 However, the Court unanimously found that a deprivation of essential information that would have enable petitioners to assess the risks constitutes a violation of the right to respect for their private and family life as provided for in Article 8 of the European Convention on Human Rights.1137 In the case of Tatar, the Court ratified this view of Guerra by stating that the public’s right to information is, according to Article 8 (1) of the European Convention on Human Rights, part of a positive obligation to adopt legislative and administrative measures to prevent damage to the environment and human health.1138 Furthermore, the Court stressed the particular role of the public’s access to the conclusions of environmental impact assessment and information since they enable people to assess the risks to which they are exposed during the performance of hazardous activities.1139 In the case of Öneryldiz vs Turkey, the Grand Chamber of the European Court of Human Rights acknowledged that public access to clear and full information constitutes a basic human right.1140 The Grand Chamber corroborated the view 1134 European Court of Human Rights, Leander vs Sweden App no 9248/81 (1987), Par. 74 1135 European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Par. 52; Handl, ‘Human Rights and the Protection of the Environment’ , in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: ATextbook (2001) 324 – 325; Shelton, ‘The Environmental Jurisprudence of International Human Rights Tribunals’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 4 1136 European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Par. 53 1137 European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Par. 60 1138 European Court of Human Rights, Tatar vs Romania App no 67021/01 (2009), Pars. 88 and 113 1139 European Court of Human Rights, Tatar vs Romania App no 67021/01 (2009), Par. 113 1140 European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 62

Procedural Rights

275

held in the case of Guerra et al. vs Italy that the public’s right to information is protected under the scope of Article 8 of the European Convention on Human Rights. Furthermore, the Chamber added that the right to information could also, in principle, be applied for the purpose of protecting the right to life. The judges supported this view by stating that Article 2 of the European Convention on Human Rights imposes on States the primary duty to adopt legislative and administrative measures designed to effectively protect the right to life. In the particular context of dangerous activities, the public’s right to information constitutes, according to the Court, a preventive measure that ensures the effective protection of citizens whose lives might be endangered by inherent risks linked to these activities.1141 Given these facts, it is possible to conclude that the right to obtain information in relation to environmental matters is not protected under the scope of the right to freedom of opinion and expression (Art. 10) but under the right to respect for private and family life (Art. 8) and the right to life (Art. 2). On this legal basis, European States have the positive obligation to allow access by their populations to information about the possible risks and consequences of activities hazardous to the health and the environment as well as to undertake the measures to reduce the risks and impact of accidents. By contrast, the right to obtain information has been recognized as integral part of the right to freedom of thought and expression within the Inter-American human rights protection system. In fact, the Inter-American Commission on Human Rights stated in the ’Report on the Situation of Human Rights in Ecuador’ that the right to seek, receive and impart information and ideas of all kinds is protected under the scope of protection of Article 13 of American Convention on Human Rights.1142 The Inter-American Court of Human Rights confirmed the view of the Inter-American Commission in the case of ClaudeReyes et al. vs Chile. The Inter-American Court held the Chilean government responsible for the violation of the right to freedom of thought and expression consecrated in Article 13 of the American Convention since public instances failed to provide without valid justification information requested by citizens about an investment agreement involving a deforestation project that could cause environmental damage and impact on indigenous people.1143 The Court explained that Article 13 (1) of the Convention protects the right of individuals to request access to State-held information and to receive such information and also imposes on States the positive obligation to provide it. The aim of this safeguard is to ensure that individuals have access to such information or receive 1141 European Court of Human Rights, Öneryildiz vs Turkey App no 48939/99 (2004), Par. 90 1142 Inter-American Commission on Human Rights, ‘Report on the Situation of Human Rights in Ecuador’ OEA/Ser.L/V/II.96 (1997), ch VIII 1143 IACtHR, Claude-Reyes et al vs Chile (2006) Serie C no 151, Pars. 3, 66 and 99

276

The Link Between Human Rights and the Environment

a reasoned and timely response in cases where the access to information is refused by the State for a reason permitted by the Convention.1144 In the view of the Court, the protection of the right to access to State-held information strengthens democracy since it makes possible democratic control, accountability and political participation of society.1145 Furthermore, in the case of Claude-Reyes, the Court laid down procedural requirements for the access to State-held information. In accordance with the principle of maximum disclosure, every individual is entitled to access to all information without the need to prove direct interest or personal involvement in order to obtain it.1146 Nevertheless, States are allowed to restrict the access to information in cases where a legitimate restriction applies.1147 Criteria restricting the exercise of the right of thought and expression have been established by the Inter-American Court. According to these criteria, restrictions must firstly be established by law.1148 Secondly, these restrictions should be in accordance with a purpose allowed by the American Convention. By virtue of Article 13 (2) of the Convention, purposes which justify restricting access to information are a necessity to ensure ‘respect for the rights or reputations of others’ or ‘the protection of national security, public order, or public health or morals’.1149 Lastly, the restrictions must satisfy a compelling public interest. This means that ‘restrictions must be proportionate to the interest that justifies them and must be appropriate for accomplishing this legitimate purpose, interfering as little as possible with the effective exercise of the right’.1150 Additionally, the right to information imposes upon Inter-American States the obligation to inform the public as well as to regularly and systematically collect and disseminate information. With respect to the first obligation, state bodies are called on to actively inform the public about their participation rights as well as about decisions that will affect their interests and their right to participate in the decision-making process.1151 Furthermore, States must inform the public, even without specific request, about any situation that may risk people’s lives or their environment so that they are in the position to assess and prevent

1144 IACtHR, Claude-Reyes et al vs Chile (2006) Serie C no 151, Par. 77; Saladin, ‘Public Participation in the Era of Globalization’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 61 1145 IACtHR, Claude-Reyes et al vs Chile (2006) Serie C no 151, Pars. 84 – 87 1146 IACtHR, Claude-Reyes et al vs Chile (2006) Serie C no 151, Par. 77 1147 IACtHR, Claude-Reyes et al vs Chile (2006) Serie C no 151, Par. 88 1148 IACtHR, Claude-Reyes et al vs Chile (2006) Serie C no 151, Par. 89 1149 IACtHR, Claude-Reyes et al vs Chile (2006) Serie C no 151, Par. 90 1150 IACtHR, Claude-Reyes et al vs Chile (2006) Serie C no 151, Par. 91 1151 Saladin, ‘Public Participation in the Era of Globalization’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 61

Procedural Rights

277

negative impacts.1152 This duty is rooted in Principle 10 of the Rio Declaration which states that individuals have the right to be informed of ‘hazardous materials and activities in their communities’. In addition, States have the duty to collect and disseminate information on the state of the environment as well as the environmental and social impact of environmental hazards. This particular positive obligation was dismissed by the European Court of Human Rights in the case of Guerra et al. The European Court determined that Article 10 (1) did not impose on a State a positive obligation to collect and disseminate information of its own motion.1153 This analysis shows the different approaches given to the right to information access. While the Inter-American Court recognized the right to receive information on environmental issues on the basis of the freedom of opinion and expression, the European Court characterized access to information as part of the framework of Article 8 (1) of the European Convention. Violations of the right to access to information in an environmental context occur at several levels, according the Special Rapporteur, Zohra Ksentini. Relevant information regarding development projects or other activities is located in different entities so that the public has difficulties in gaining access to such information. Moreover, international funding institutions or transnational corporation may prevent the public from accessing information under their control. In order to avoid this scenario, international institutions and the private sector have undertaken various initiatives to facilitate access to information in their possession.1154 For instance, in 2009 the World Bank launched the World Bank Policy on Disclosure of Information. Under this policy, the Bank can make public any information on key decisions made during the development and implementation of a project.1155 Similarly, the United Nations Development Program (UNDP) developed a mechanism to disclose information in its Public Information Disclosure Policy. Further violations may also occur when States cite national security or other reasons such as commercial and industrial confidentiality or the confidentiality of personal data, to limit public access to information. These restrictions do not imply a violation when in conformity with the relevant derogation clauses of human rights instruments or when being subject to a judicial review.1156 Nevertheless, the Special Rapporteur pointed out 1152 Zohra Ksentini, Review of further developments (1994) Par. 204 1153 European Court of Human Rights, Guerra and others vs Italy App no 116/1996/735/932 (1998), Par. 53 1154 Zohra Ksentini, Review of further developments (1994) Par. 210 1155 World Bank, ‘World Bank Broadens Public Access to Information’ (2010) accessed 12 March 2013 1156 Zohra Ksentini, Review of further developments (1994) Pars. 211 and 213; Handl, ‘Human Rights and the Protection of the Environment’ , in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 319

278

The Link Between Human Rights and the Environment

that national security is not acceptable as an argument to interfere with access to information when this information relates to specific hazardous materials and conditions at industrial facilities, to environmental consequences of development projects as well as to pollutants and wastes associated with industrial and agricultural processes.1157 In order to stop such violations, it is necessary that States strengthen this right by improving its enforceability at national and international level as well as by building institutional capacity for its implementation.

b.

The Right to Participate in Decision-Making Processes

Public participation ensures the incorporation of individuals and groups in a decision-making process. This means on the one side that people can have sufficiently early access to information about issues that may affect them. On the other side, participation guarantees that they will have at their disposal mechanisms and procedures to ensure their participation in the decision-making process.1158 With respect to environmental matters and the extraction of energy resources, the right to participate in a decision-making process has played a significant role in decisions on development projects, especially when they affect the rights of indigenous peoples to use and enjoy their resources.1159 In the case of Apirana Mahuika et al vs New Zeland, the Human Rights Committee confronted the problem of balancing indigenous rights to access to natural resources with the State’s efforts to convert natural resources. By virtue of Article 27 of the ICCPR, a member of a minority has the right to enjoy his or her own culture. This right implies the protection of traditional means of livelihood of minorities as well as the adaptation of those means to modern way of life and technology.1160 In cases where measures may affect or interfere with culturally significant economic activities of a minority, States are called on to ensure, among other measures, the effective participation of members of minority communities in decisions which affect them.1161 In the present case, the New Zealand government undertook a complicated process of consultation in order to comply with this requirement. As a result, the Committee found that New Zealand did not breach 1157 Zohra Ksentini, Review of further developments (1994) Par. 214 1158 Saladin, ‘Public Participation in the Era of Globalization’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 22, 63 – 64 1159 Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 131 – 132 1160 HRC, Mahuika et al vs New Zeeland (2000) no 547/1993, Par. 9.4 1161 HRC, General Comment No. 23, Freedom of minorities (Art.27) (1994), Par. 7; HRC, Länsman et al vs Finland (1996) no 671/1995, Pars. 9.6 and 9.8

Procedural Rights

279

the Covenant since the State ensured the realization of the right to culture through holding consultations. In addition, international organizations such as the International Labour Organization (ILO) as well as the Inter-American Human Rights Commission and Court, have extensively dealt with the right of indigenous peoples to participate in the decisions affecting their property rights. The effective participation of indigenous peoples entails both the right of indigenous peoples to be consulted as well as the state’s obligation to obtain the consent of the indigenous peoples in cases where States plan to exploit resources in their territories.1162 The right to participate in decision-making processes has its roots in Article 6 (1) of the C169 ILO and in Article 23 of the American Convention on Human Rights. Unfortunately, at international level there is still neither a unified meaning of the terms participation, consultation and consent, nor a common policy for its implementation and enforcement. The absence of unified definition and implementation procedures for these terms has led to the difficult and controversial question of whether indigenous peoples have a right to deny their consent when a State plans to implement a development project in their territories. The Convention 169 of the ILO uses indistinctly the terms ‘consult’ and ‘participation’. Article 6 (1) (a) of this Covenant determines that indigenous peoples must be consulted through appropriate procedures and through their representative institutions when any legislative or administrative measure may affect them directly. With respect to the extraction of natural resources, Article 15 (1) C169 ILO acknowledges the right of indigenous peoples to participate in the use, management and conservation of natural resources in their territories. Even in cases where the State may retain ownership of mineral or sub-surface resources, States are obliged in accordance with the Covenant to consult indigenous peoples, either prior to the implementation of a project for exploitation of mineral or subsurface resources or prior to issuing authorizing such activities, whether and to what degree their interests would be adversely affected.1163 On this legal basis, the Confederaciûn Ecuatoriana de Organizaciones Sindicales Libres (CEOSL) submitted to the ILO Committee on the Application of Conventions and Recommendations a complaint against the Ecuadorian state. The complaint related to the non-compliance of the obligation of the Ecuadorian government to inform and consult indigenous peoples. In 1998, the Ecuadorian government signed a participation contract with the Arco Oriente oil company with the purpose to extract oil in areas in which the Shuar people lived. The 1162 Inter-American Commission on Human Rights, ‘Indigenous and tribal peoples’ rights over their ancestral lands and natural resources: Norms and Jurisprudence of the InterAmerican Human Rights System’ OEA/Ser.L/V/II (2009) Par. 289 1163 Art. 15 (2) of the C169 ILO

280

The Link Between Human Rights and the Environment

government failed to inform and consult the indigenous Shuar’s organization (FIPSE) about these activities. In 1999, the Ecuadorian government approved the transfer of the contractual obligations to the oil company Arco Burlington Resources Limited Ecuador, once again without consulting the Shuar people. In its final conclusion, the Committee recognized on the one side that the Ecuadorian government holds the property rights over sub-surface resources. On the other side, the Committee pointed out that the State is urged to consult indigenous peoples before granting permission for the exploration and exploitation of natural resources in their territories.1164 With respect to the question of whether consultations would have to result in obtaining the consent of those being consulted, the Committee made clear that the objective of Article 6 is not to reach a consensus in the process of prior consultation but rather to give people the opportunity to participate freely at all levels in the formulation, implementation and evaluation of measures and programs that affect them directly.1165 The Committee based its view on the discussion concerning the adoption of Article 6 of the Convention on prior consultation. It recalled the statement made by a representative of the SecretaryGeneral who declared that in drafting the text, the Office had not intended to suggest that the consultations would have to result in obtaining of agreement or consent of those being consulted but rather to express an objective for the consultations.1166 Consequently, indigenous peoples do not have a veto right over projects in their territories within the ILO system. The Committee also set out guidelines for the implementation of the consultation process. The C169 ILO establishes in Article 6 (2) that consultations must be undertaken ”in good faith and in a form appropriate to the circumstances.” Accordingly, consultation should follow the traditional methods used by indigenous 1164 ILO – Committee of Experts on the Application of Conventions and Recommendations ILO, Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under Article 24 of the ILO Constitution by the Confederaciûn Ecuatoriana de Organizaciones Sindicales Libres (CEOSL) (162000ECU169, 2000) Pars. 10 – 11, 35, 38 1165 ILO – Committee of Experts on the Application of Conventions and Recommendations ILO, Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under Article 24 of the ILO Constitution by the Confederaciûn Ecuatoriana de Organizaciones Sindicales Libres (CEOSL) (162000ECU169, 2000) Par. 39 1166 Committee on Convention No. 107, Record of Proceedings of the 76th Session of the International Labour Conference (1989), Par. 74; ILO – Committee of Experts on the Application of Conventions and Recommendations ILO, Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under Article 24 of the ILO Constitution by the Confederaciûn Ecuatoriana de Organizaciones Sindicales Libres (CEOSL) (162000ECU169, 2000) Par. 39

Procedural Rights

281

peoples to make decisions. An additional requirement is promptness of consultations. This means that consultation should be performed before finalizing the EIA.1167 Furthermore, the Committee stressed that this consultation process should be developed with the truly representatives of the communities affected.1168 Apart from the C169 ILO, the UNDRIP contains provisions related to the process of consultation. The UNDRIP provides in Article 19 the right of indigenous peoples to be consulted before adopting or implementing any administrative or legislative measures that may affect them. Article 32 (2) deals with the right to free, prior and informed consent prior to the approval of any project affecting their lands or territories and other resources. Projects related to the development, use and exploitation of water and mineral resources are especially included under the umbrella of Article 32 (2). Moreover, this provision guarantees the right of indigenous peoples to give their free, prior and informed consent. International standards and good practices have also included in their provisions the right of indigenous peoples to participate in decisions on measures which may limit their property rights and their rights to access to and to enjoy their resources. One of these international standards is the so-called Akwe: Kon Guidelines. These guidelines have been drawn up as a response to the negative impact of development projects or investments in the extraction of biological resources within the territories of indigenous peoples. They propose the implementation of three different types of impact assessments in order to obtain information about the impact of a development project or investment on the culture, society and the environment with the aim to prevent a potentially adverse effect on holy sites, lands or waters of indigenous people. An important consideration to be taken into account when carrying out impact assessments is the prior informed consent of affected indigenous and local communities.1169 According to Akwe:Kon where the national legal regime requires prior informed consent of indigenous and local communities, the assessment process should 1167 ILO – Committee of Experts on the Application of Conventions and Recommendations ILO, Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under Article 24 of the ILO Constitution by the Confederaciûn Ecuatoriana de Organizaciones Sindicales Libres (CEOSL) (162000ECU169, 2000) Par. 39 1168 ILO – Committee of Experts on the Application of Conventions and Recommendations ILO, Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under Article 24 of the ILO Constitution by the Confederaciûn Ecuatoriana de Organizaciones Sindicales Libres (CEOSL) (162000ECU169, 2000) Par. 44 1169 Akw¦:Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to take place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities, (2004) Par. 52

282

The Link Between Human Rights and the Environment

consider if such prior informed consent has been obtained. In addition, these guidelines have established several criteria which should be respected in the implementation of prior and informed consent. ‘Prior informed consent corresponding to various phases of the impact assessment process should consider the rights, knowledge, innovations and practices of indigenous and local communities; the use of appropriate language and process; the allocation of sufficient time and the provision of accurate, factual and legally correct information. Modifications to the initial development proposal will require the additional prior informed consent of the affected indigenous and local communities.’1170

International financial organizations such as the World Bank, the Inter-American Development Bank and the European Bank for Reconstruction and Development have a major influence on national macroeconomic policies, governance structures as well as on development projects.1171 Therefore, these organizations have incorporated the rights of indigenous peoples into their lending policies. The revised Operational Policy and Bank Procedure on Indigenous Peoples (OP/BP 4.10) requires a free, prior and informed consultation which should be based on ‘broad community support’ when a project is sponsored by the Bank and will affect the rights of indigenous peoples. According to the World Bank, this ‘broad community support’ is achieved whereas the majority of the representatives of the community support the project.1172 The OP/BP 4:10 define certain criteria to carry out the consultations. First, the methods of implementation should be in accordance with the social and cultural values of indigenous peoples. The consultations should be carried out in good faith. Moreover, the information about the project and its effects should also be freely available.1173 Despite the support of the Bank for consultations, it stressed in the OP/BP 4.10 that free, prior and informed consultation and informed participation of the indigenous groups affected by a project do not grant indigenous peoples veto rights.1174 This position was taken in the Final Report of the Extraction Industries Review by the Executive Directors of the World Bank in 2004.1175 This view is in sharp contrasts with the Extraction Industries Review 1170 Akw¦:Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to take place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities, (2004) Par. 53 1171 Saladin, ‘Public Participation in the Era of Globalization’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 57 1172 World Bank, Bank Procedure 4.10 – Indigenous Peoples (2005), Par. 7 1173 World Bank, The revised Operational Policy 4.10 – Indigenous Peoples (2005), Pars. 1, 10 1174 World Bank, The revised Operational Policy 4.10 – Indigenous Peoples (2005), footnote 4 1175 World Bank Group and Extractive Industries, ‘The Final Report of the Extractive Industries Review : Chairman’s Summary (Meeting of the Executive Directors, 3 August 2004)

Procedural Rights

283

(EIR) of 2003 issued by the World Bank Group and the extraction industries in the oil, gas and mining sector. The review concluded that indigenous peoples have the right to participate in decision making as well as to express their FPIC in each phase of project cycle. According to the EIR, this consent constitutes on the one side a safeguard of their rights to access their natural resources as well as a prerequisite for the granting of loans by the bank.1176 Like the World Bank, other regional financial institutions have made the right to participation and consultations a part of their policies. The Inter-American Development Bank (IDB) integrated prior consultation in its Operational Policy on Indigenous Peoples and Strategy for Indigenous Development. Prior consultation is perceived by the bank as a necessary measure to minimize and prevent direct or indirect adverse impact on indigenous peoples’ rights and their assets. Furthermore, in projects linked to natural resources extraction, in the view of the Bank consultations constitute an essential mechanism to preserve the physical, cultural and economic integrity of affected indigenous peoples. Accordingly, development projects need to satisfy, among other measures, a consultation process to be eligible for Bank financing. The IDB’s policy also sets out parameters to carry out consultations. In this sense, consultations should be performed in good faith and of course provide full information on the extent and effects of the project. An appropriate consultation process may guarantee the consent of indigenous peoples to projects financed by the IDB.1177 Likewise, the European Bank for Reconstruction and Development (EBRD) recognized the special relationship of indigenous peoples to their lands and resources and the threat to which this relationship is exposed when implementing certain types of development projects. The EBRD established general and special measures to preserve identity, culture, territory and resources of indigenous peoples in its Environmental and Social Policy. Regarding general requirements, clients of the Bank are called on to carry out consultation. This will enable indigenous peoples to participate in the design and implementation of measures to mitigate impact and to share development benefits.1178 In cases where indigenous peoples are particular vulnerable, three additional requirements should be imposed. First, clients must be required to enter in good-faith negotiation with indigenous people. Second, indigenous peoples’ informed participation must be ensured. Third, clients accessed 4 December 2012: ‘Many Directors stressed the importance of avoiding proposals that created a veto rights against projects that were supported by national and local governments and emphasized the primacy of national sovereign law in this area.’ 1176 World Bank Group and Extractive Industries, Striking a Better Balance (2003) 18 – 21, 49 1177 Inter-American Development Bank, Operational Policy on Indigenous Peoples and Strategy for Indigenous Development (2006) 8 1178 European Bank for Reconstruction and Development, Environmental and Social Policy, PR 7: Indigenous Peoples (2008), Pars. 22 – 25

284

The Link Between Human Rights and the Environment

should obtain the free, prior and informed consent of these peoples before the start of beginning the project.1179 Through the application of such measures, the EBDR ensures that clients’ projects are legitimated and their investment guaranteed. Based on this analysis, the incorporation of consultations into the lending policies of regional financial institutions strengthens the participation of vulnerable groups such as indigenous people, in any decision-making process. United Nations bodies dealing with the promotion and protection of human rights of indigenous people have also addressed the right to participation of indigenous peoples in decisions about measures which may limit their rights to access, use and enjoy their resources. The Special Rapporteur on the rights of indigenous peoples, Rodolfo Stavenhagen, expressed in his 2003 report on the situation of human rights and fundamental freedoms of indigenous peoples that free, prior and informed consent (FPIC) and self-determination of indigenous peoples are key prerequisites for development projects or investments. Consequently, governments are called on to work closely together with indigenous peoples and organizations to achieve consensus on development projects and investments in indigenous territories and to provide appropriate institutional mechanisms to address such issues.1180 Similarly, the Committee on the Elimination of Racial Discrimination (CERD) pointed out in its Concluding Observations: Ecuador of 2003 that merely consulting these communities prior to extracting resources from their territories did not meet the requirements laid down in the Committee’s general recommendation XXIII on the rights of indigenous peoples. Taking this into account, the Committee recommended States to obtain the consent of indigenous peoples concerned before beginning the exploitation of underground resources.1181 In addition, the United Nations Permanent Forum on Indigenous Issues formulated six important characteristics that should be respected by States in the implementation of the FPIC. These are:1182 a. FPIC should be done without coercion, intimidation or manipulation. b. FPIC should be obtained prior to the authorization or the beginning of an activity in the territories of indigenous peoples. In addition, the time re-

1179 European Bank for Reconstruction and Development, Environmental and Social Policy, PR 7: Indigenous Peoples (2008), Par. 31 1180 Stavenhagen, Human rights and indigenous issues (2003), Par. 73 1181 CERD, Concluding observations of the Committee on the Elimination of Racial Discrimination : Ecuador (2003), Par. 16 1182 Permanent Forum on Indigenous Issues, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples (2005), Pars. 46 – 48

Procedural Rights

c.

d. e. f.

285

quirements of indigenous consultation processes should be taken into account. Information should cover at least the following aspects: the nature, significance, reversibility, scope of the proposed project or activity, the duration and the affected areas, a preliminary assessment of the economic, social, cultural impacts, risks and a preliminary EIA. Indigenous peoples or communities should specify which institutions are entitled to express the consent on behalf of these peoples or communities. Information should be accurate, accessible and understandable. Indeed, it should be given in local language and in a culturally appropriate way. With respect to the procedures to implement FPIC, consultations should be carried out in good faith. The dialogue between the parties should lead to a solution acceptable for both parties. This dialogue should reflect the respect between the parties, good faith and full and equitable participation. Moreover, consultations require a certain time and a reliable system of communication between interested parties.

Within the Inter-American human rights protection system, the Commission and Court of Human Rights have treated the FPIC in depth. The Inter-American Commission on Human Rights characterized FPIC as a key requirement for ensuring the property rights of indigenous peoples over their traditional territories and their access to natural resources. In the case of Mary and Carrie Dann1183, the Commission considered on the basis of Articles XVIII and XXIII of the American Declaration that States have the obligation to ensure that a process of fully informed and mutual consent is carried out with the aim to determinate the extent to which indigenous communities maintain their relationship with the lands traditionally occupied and used by them. According to the Commission, this presupposes that all of the members of the community are fully and accurately informed of the nature and impact of the process as well as they are provided with an effective opportunity to participate individually or as collectives.1184 In the view of the Commission, these requirements apply in particular to decisions that may have an impact on indigenous lands and their communities such as the granting of concessions to exploit natural resources in indigenous territories.1185 In the case of the Maya indigenous community of the 1183 In the present case, the United States violated the property rights of the Western Shoshona people since the government legalized the appropriation of the Dann sister’s land through negotiations with a group of Western Shoshona people who had no mandate from the other group members. 1184 IACmHR, Mary and Carrie Dann vs The United States of America (2002) Case 11140, Report no 75/02, Par. 140 1185 IACtHR, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201,

286

The Link Between Human Rights and the Environment

Toledo District, the Commission ratified this view and held Belize responsible for the violation of property rights of the Maya people since this people was not consulted and, consequently, they did not express their informed consent to granting logging and oil concessions in their territories. As can be observed, the right to FPIC has been linked in the Inter-American Human Rights system to the protection of the right to ownership of indigenous peoples over their land and resources. In the case of Saramaka, the Inter-American Court of Human Rights analyzed the role of indigenous peoples’ participation in development or investment plans that may affect the environment and their access to natural resources. The Court ratified the view of the Commission in the case of Maya indigenous community of the Toledo District by stating that States have an obligation to actively consult with indigenous peoples according to their customs and traditions, especially, when development projects or investments are planned in their territories. According to the Court, the purpose of this consultation is to both accept and disseminate information as well as to establish an active and continuous communication between the State, the indigenous peoples concerned and the investors. In order to carry out this consultation, the Inter-American Court of Human Rights set four parameters:1186 a. Consultations must be carried out in good faith, through culturally appropriate procedures and must seek agreement between the parties. b. The process leading to consultation must be in accordance with the culture and traditions of the indigenous community affected. In addition, consultations must take place at the early stages of a development or investment plan. c. The State must ensure that the members of the indigenous community affected by a development project or investment be aware of the possible risks including those environmental ones. This will guarantee that proposed development or investment plan is accepted knowingly and voluntarily. d. The consultation must consider the traditional methods of decision-making. Given the major impact that large-scale development or investment projects may have on indigenous peoples’ territories and their access to resources, the InterAmerican Court of Human Rights set a further precondition condition for the implementation of such projects and investment. Accordingly, States are obliged not only to consult with the affected indigenous group but also to obtain their FPIC in accordance with the traditions and customs of this group.1187 In this way, Par. 153; IACmHR, Maya indigenous community of the Toledo District vs Belize (2004) Case 12053, Report no 40/04, Par. 142 1186 IACtHR, Saramaka People vs Surinam (2007) Serie C no 172, Par. 133 1187 IACtHR, Saramaka People vs Surinam (2007) Serie C no 172, Par. 134

Procedural Rights

287

the Court guarantees that indigenous peoples can decide on the implementation of projects that may affect their property and access to natural resources. The participation of indigenous peoples in government decisions and actions by means of consultations and FPIC ensures access of indigenous peoples to their natural resources and their sustainable use. Examples of positive experiences of consultations and FPIC are, for example, the agreement between the mining company Voisey Bay Nickel Company, the Innuit nation and the Labrador Intuit Association in Canada. This agreement recognizes the constitutional rights of indigenous communities to their ancestral land so that mining activities in the ancestral Innu land can only be conducted with their consent. The agreement has encouraged the involvement of indigenous peoples with the project design, employment, environmental protection, social security and cultural protection measures.1188 In this sense, participation regarding development plans and investments that may affect the environment and access to resources implies the dissemination of information, timely incorporation of individuals and groups in decision-making and furthermore the inclusion of citizens in the monitoring and control of ongoing projects.

c.

Benefit Sharing

Participation in the benefits has been identified as a specific form of fair compensation in cases where the rights of individuals or groups to property and to access to natural resources have been limited by the implementation of development or investment projects. This right has played a significant role for communities located in areas where extraction activities are developed. The content of the right to participate in the benefits derived from extraction projects has its roots in the limitation or deprivation of the right to indigenous communal property. In the case of Saramaka, the Inter-American Court of Human Rights characterized the right to obtain ‘just compensation’ as a safeguard rooted in Article 21 (2) of the American Convention on Human Rights. According to the Court, the principal feature of this safeguard is to ensure that indigenous peoples ‘[…] reasonably share in the benefits made as a result of a restriction or deprivation of their right to the use and enjoyment of their traditional lands and of those natural resources necessary for their survival.’1189 The concept of benefit sharing has also been included in several international instruments such as Art. 15 (2) of the C169 ILO and Article 32 (2) of the UNDRIP.1190 Furthermore, 1188 Stavenhagen, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (2007), Par. 25 1189 IACtHR, Saramaka People vs Surinam (2007) Serie C no 172, Par. 139 1190 IACtHR, Saramaka People vs Surinam (2007) Serie C no 172, Par. 138

288

The Link Between Human Rights and the Environment

various United Nations bodies have dealt with the right to participate in benefits. For instance, the CERD called on States in its Concluding Observations on Ecuador to ensure equitable sharing of benefits derived from extraction activities.1191 Likewise, international financial institutions have incorporated the right of indigenous peoples to benefit-sharing into their policies. International financial institutions such as the World Bank, the InterAmerican Development Bank and the European Bank for Reconstruction and Development, have addressed the right of indigenous peoples to participate in the benefits derived from extraction activities. The World Bank requires in its Revised Operational Policy and Bank Procedure on Indigenous Peoples (OP / BP 4.10) that Bank-financed projects include measures to ensure the participation of indigenous peoples in the social and economic benefits of the project as well as to compensate for the negative effects of the project.1192 Similarly, the InterAmerican Development Bank demand in its Operational Policy on Indigenous Peoples that extraction operations financed by the Bank include measures to compensate indigenous peoples for direct or indirect effects on the legal status, management, or possession of lands and natural resources traditionally occupied and used by those peoples. In addition, this policy requires that operations undertake measures which ensure the participation of indigenous peoples in the profits of the project.1193 Furthermore, the European Bank for Reconstruction and Development compels its clients through its Environmental and Social Policies to provide compensation for damage as the result of project-related activities as well as opportunities for culturally appropriate development benefits with the aim of improving the living and livelihoods of indigenous peoples and of ensuring the long-term sustainability of natural resources on which they depend.1194 All of this demonstrates that the right to participate in benefits from extraction activities has been recognized at international level as a measure to compensate for the limitation of property rights and environmental damage. This recognition, in turn, imposes certain obligations on the State. Within the framework of the right to benefit sharing, States have the international obligation to guarantee that members of affected indigenous or tribal communities obtain a reasonable benefit from development or investment plans in their territories.1195 To comply with this obligation, States are called on to set 1191 CERD, Concluding observations of the Committee on the Elimination of Racial Discrimination: Ecuador (2003), Par. 16 1192 World Bank, The revised Operational Policy 4.10 – Indigenous Peoples (2005), Par. 1 1193 Inter-American Development Bank, Operational Policy on Indigenous Peoples and Strategy for Indigenous Development (2006) 8 1194 European Bank for Reconstruction and Development, Environmental and Social Policy, PR 7: Indigenous Peoples (2008), Par. 30 1195 IACtHR, Saramaka People vs Surinam (2007) Serie C no 172, Par. 129

Procedural Rights

289

up appropriate procedures which aim both at ensuring the participation of affected communities in the determination of the benefits from the proposed projects as well as compensating them for any environmental damage in a manner according to their own development policies.1196 With respect to the procedures, the Inter-American Court of Human Rights set up in the case of Saramaka certain criteria for carrying out the participatory process for determining the distribution of benefits. For example, the Court established that the determination of the beneficiaries of just compensation must be made in consultation with the affected indigenous community and not unilaterally by the State.1197 Furthermore, in case of a conflict between the members of the indigenous community about who is to benefit from development projects, the Court pointed out that these differences had to be resolved by indigenous community affected in accordance with their traditional customs and law.1198 Despite of the international obligation of States to guarantee that indigenous or tribal communities share in the benefits from development projects, at local level governments still face conflicting interests regarding the management of economic resources derived from extraction projects.1199 A further question linked to the right to obtain compensation constitutes the conditions under which exploration and exploitation areas are to be returned to indigenous peoples once a license has expired. The rehabilitation of degraded and polluted land after a concession is a precondition to guarantee the further use of land and resources. This, however, results in increased cost for the extraction industries. As a consequence, States which lack mechanisms to implement and enforce compensation and the distribution of benefits, provide an unfair State subsidy to extraction industries operating in their jurisdiction. This, in turn, distorts energy prices and affects international trade and competition. In this context, Erica-Irene A. Daes, member of the Working Group on Indigenous Populations of the Sub-Commission on the Promotion and Protection of Human Rights, noted in her working paper on combating racism against indigenous peoples: 1196 Inter-American Commission on Human Rights, ‘Access to Justice and Social Inclusion: The Road towards Stregthening Democracy in Bolivia’ OEA/Ser.L/V/II Doc 34 (2007) Par. 248; Inter-American Commission on Human Rights, ‘Democracy and Human Rights in Venezuela’ OEA/Ser.L/V/II Doc 54 (2009) Par. 1141 (5); Inter-American Commission on Human Rights, ‘Indigenous and tribal peoples’ rights over their ancestral lands and natural resources: Norms and Jurisprudence of the Inter-American Human Rights System’ OEA/Ser.L/V/II (2009) Par. 239 1197 IACtHR, Saramaka People vs Surinam (2008) Interpretation of the Judgment Serie C no 185, Par. 25 1198 IACtHR, Saramaka People vs Surinam (2008) Interpretation of the Judgment Serie C no 185, Par. 26 1199 World Bank Group and Extractive Industries, Striking a Better Balance (2003) 23

290

The Link Between Human Rights and the Environment

‘There can be no “free” or “fair” trade between States unless States respect and protect the land rights of indigenous peoples. At the present time, States that expropriate indigenous peoples’ lands without consent or full compensation, or condone the invasion of indigenous peoples’ territories, are reaping an unfair competitive advantage in relation to States that respect indigenous peoples’ land rights. They are subsidizing their export industries with indigenous peoples’ natural resources. This is potentially a considerable trade distortion as well as an abuse of indigenous peoples’ basic rights and fundamental freedoms […].’1200

An additional controversy is the lack of fiscal mechanisms to distribute the benefits from the exploitation and extraction of natural resources. In order to address this challenge, the Philippine government, for example, created a revenue-sharing mechanism which distributes funds in an equitable way by involving the public in social and environmental programs.1201 This analysis shows the importance of developing and strengthening measures and mechanisms to ensure the access to benefit and compensation in order to strike a balance between human rights, environmental conservation and the economic interest of investors and States.

d.

Conclusion

Participation is the inclusion of civil society in policy-making processes by providing them with accurate information about issues of concern to them and by involving them in the actual decision-making processes. This strengthens democracy and the distribution of resources at all levels. With respect to the extraction of natural resources, the rights to participation provide stakeholders involved in extraction activities procedural safeguards such as the right to information, the right to participate in the decision-making process and to benefit sharing. These rights must be guaranteed at all the stages involving the development, management, implementation of extraction policies and projects in order to ensure the realization of human rights and environmental conservation. The right to access to information ensures that individuals have access to relevant information held by authorities or state bodies. In an environmental context, the right to information includes: the right of citizens to obtain information, the duty of the State to inform the public and the duty to regularly and systematically collect and disseminate information. A fundamental question that arises in relation to the right to access to information is whether this right is part of the freedom of opinion and expression. The European Court of Human 1200 Daes, Review of Reports, Studies and other Documentation for the Preparatory Committee and the World Conference (2001), Par. 7 (a) 1201 World Bank Group and Extractive Industries, Striking a Better Balance (2003) 23

Procedural Rights

291

Rights has restrictively interpreted the right to receive information enshrined in Article 10 (1) of the European Convention on Human Rights. Accordingly, States do not have a positive obligation to collect and disseminate information of their own. However, European States have the positive obligation to allow access of the population to information about the possible risks and consequences of activities hazardous to health and the environment as well as to adopt measures to reduce the risks and impact of an accident on the basis of article 8 of the European Convention on Human Rights. By contrast, the Inter-American Commission and Court have recognized that the right to obtain information is an integral part of the right to freedom of thought and expression embodied in Article 13 of the American Convention. Consequently, American States have the duty to provide information requested by citizens about environmental issues even without the need to prove direct interest or personal involvement. In this sense, the right to access to information is a crucial instrument at the moment to assess the impact of a development project on the environment and the exercise of human rights. A further right that ensures the inclusion of individuals in the policy-making process is the right to participate in these processes. With respect to the development of extraction projects, the right to participate in decision-making process plays a significant role in ensuring the rights of people, especially of indigenous peoples whose life has been affected by the negative consequences of such projects on their territories and resources. The effective participation of indigenous peoples imposes upon States the obligation to obtain the consent of the indigenous peoples when States plan to exploit resources in their territories. Several international organizations have dealt with the right of indigenous peoples to participate in decisions affecting their property rights. For example, the ILO Committee on the Application of Conventions and Recommendations pointed out the importance to consult indigenous peoples before granting permission for the exploration and exploitation of natural resources in their territories. Furthermore, international standards and good practices have also included the right of indigenous peoples to participate in decisions on measures which may limit their property rights and their rights to access and enjoyment of their resources. This is the case of the Akwe: Kon Guidelines created within the framework of the Convention on Biological Diversity. In addition, the Inter-American Court and Commission has ratified the obligation of States to actively consult indigenous peoples according to their customs and traditions when large-scale development or investment projects may have direct consequences on indigenous peoples’ territories and their access to resource. This development evidences that participation of people in government decisions and actions by means of consultations may prevent violations of human rights and devastating environmental damage caused by extraction activities.

292

The Link Between Human Rights and the Environment

Finally, participation in the benefits constitutes a form of fair compensation when rights of individuals or groups to property and to the access to natural resources have been limited by the implementation of development or investment projects. In particular, indigenous peoples have been entitled to obtain benefits derived from extraction projects. The concept of benefit sharing has been included in several international instruments such as in Art. 15 (2) of the C169 ILO and Art. 32 (2) of the UNDRIP. Furthermore, international financial institutions have established in their policies measures to compensate indigenous peoples for direct or indirect effects on the legal status, management, or possession of lands and natural resources as well as to ensure their participation in the profits of the project. Apart from benefit sharing, States are called on to guarantee the further use of land and resources through the rehabilitation of degraded and polluted land after a concession. In this sense, benefit sharing is a mechanism of participation that seeks the equitable distribution of funds of an extraction activity.

2.

Access to Justice: an Environmental and Human Right

Accountability is essential for the realization of human rights and environmental conservation. It calls upon States, on the one hand, to demonstrate and justify that the conduct and actions of government officials, bureaucrats and third parties are consistent with the law and the public interest.1202 On the other hand, accountability requires States to provide adequate and effective mechanisms and proceedings to redress and remedy any violation of law.1203 Several accountability mechanisms can be implemented at national level. They include: political, fiscal, administrative and judicial mechanisms.1204 With respect to environmental issues and the enforcement of human rights, judicial accountability plays a critical role as a ‘fundamental guarantor of the rights at national 1202 UNGA, Programme for the Further implementation of Agenda 21 (1997), Par. 108; Vargas Vela de Eiden Talia, Environmental Policy under Political Transition: The Peruvian Mining Sector and the Yanacocha Gold Mine (2006) 42; Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 49 1203 Vargas Vela de Eiden Talia, Environmental Policy under Political Transition: The Peruvian Mining Sector and the Yanacocha Gold Mine (2006) 42; Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 49 1204 Vargas Vela de Eiden Talia, Environmental Policy under Political Transition: The Peruvian Mining Sector and the Yanacocha Gold Mine (2006) 42; Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 51

Procedural Rights

293

level’.1205 The right of access to justice has been considered a human right as well as an environmental safeguard in international law. By virtue of this right, individuals and groups are empowered to lodge a complaint before independent and impartial courts to establish whether their rights were violated and to have access to adequate remedy or reparation1206.1207 The right of access to justice has been included in a number of international environmental and human rights agreements. In the area of international environmental law, Principle 10 of the 1992 Rio Declaration encourages States to provide effective access to judicial and administrative proceedings. The best development of this principle is embodied in the Aarhus Convention. This Convention defines access to justice as a procedural right relevant for environmental conservation and for the enforcement of the right to information and participation.1208 Likewise, the right to have access to justice and the right to effective remedy are expressly guaranteed in universal and regional human rights instruments. The CESCR expressed in General Comment No. 3 that States parties are, by virtue of Article 2 (3) of the ICCPR, obliged to ensure the access of individuals to effective remedy.1209 Within the Inter-American human rights system, the right of individuals to effective judicial protection is encompassed in Article 25 (1) of the American Convention on Human Rights which establishes the obligation of the State to provide simple and prompt recourse to all persons in its jurisdiction against acts that violate a person’s fundamental rights.1210 As the Inter-American Court of Human Rights 1205 Shelton Dinah, ‘ Human Rights, Health & Environmental Protection: Linkages in Law & Practices’: A Background Paper for the World Health Organization’ (Health and Human Rights Working Paper Series No.1, 2002) 18 1206 Adequate reparation includes restitution, monetary compensation and satisfaction or guarantees of non-repetition. Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 57 1207 Saladin, ‘Public Participation in the Era of Globalization’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 61; Stein ‘The Role of Judiciary’ in Adrian J Bradbrook and others (eds), The Law of Energy for Sustainable Development (2005) ; Inter-American Commission on Human Rights, ‘Indigenous and tribal peoples’ rights over their ancestral lands and natural resources: Norms and Jurisprudence of the Inter-American Human Rights System’ OEA/Ser.L/V/II (2009), Par. 352 1208 In relation to the right of information, any person ‘who considers that his or her request for information under Article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered’ is entitled to access to justice (Article 9 (1)). By contrast, in the case of public participation rights, only members of the ‘public concerned’ are allowed to access to justice. Kravchenko, ‘Environment’ in Encyclopedia of Human Rights II (2009) 145 1209 CESCR, General Comment No 3, The nature of States parties obligations (Art. 2, par.1) (1990), Par. 5 1210 Inter-American Commission on Human Rights, ‘Indigenous and tribal peoples’ rights

294

The Link Between Human Rights and the Environment

stated, the right of access to justice constitutes ‘one of the basic mainstays, not only of the American Convention but also of the Rule of Law in a democratic society, in the sense set forth in the Convention.’1211 By interpreting Article 25 (1) of the American Convention on Human Rights, the Inter-American Court of Human Rights has identified two specific obligations of the State. First, States must establish in their legislation and ensure the due application of ‘effective remedies and guarantees of due process of law before competent authorities’. Second, States have the obligation to adopt effective measures and mechanisms to execute the rulings or judgements issued by their competent authorities.’1212 This particular interpretation emphasizes the importance that the Court attaches to the execution of rulings stating that ‘the effectiveness of judgements and judicial orders depends on their execution.’1213 Within the European system, the European Convention on Human Rights enshrines in Article 6 (1) the right of everyone to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. This includes the right of access to justice and the right to remedy. In several cases involving environmental issues, the European Court of Human Rights determined a breach of Article 6. In the case of Zander vs Sweden, for example, the Court found Sweden responsible for the violation or Article 6 since the petitioners did not get a judicial review of a decision rendered by municipal authorities denying remedy for environmental harm from water contamination by cyanide.1214 In a controversial environmental case, Balmer-Schafroth and others vs Switzerland, the petitioners claimed for their right to be heard before a court over a State’s decision to renew the operating permit of a nuclear plant. In this case, the Court denied the applicability of Article 6 (1) of the European Convention on Human Rights since the petitioners failed to ‘establish a direct link between the operating conditions of the power station which were contested

1211

1212

1213 1214

over their ancestral lands and natural resources: Norms and Jurisprudence of the InterAmerican Human Rights System’ OEA/Ser.L/V/II (2009), Par. 351 IACtHR, B‚maca-Vel‚squez vs Guatemala (2000) Series C No. 70, para; IACtHR, The Constitutional Court vs Peru (2001) Series C No. 71, Par. 90; IACtHR, Ivcher-Bronstein vs Peru (2001) Serie C no 54, Par. 135; IACtHR, Mayagna (Sumo) Awas Tingni Community vs Nicaragua (2001) Serie C no 201, Par. 112 Inter-American Court of Human Rights, ‘Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the American Convention on Human Rights)’, Advisory Opinion OC-9/87 (1987), Par. 24; IACtHR, Mej†a Idrovo vs Ecuador (1989) Series C No. 6, Par. 104; IACtHR, Saramaka People vs Surinam (2007) Serie C no 172, Par. 177; IACtHR, Pueblo Ind†gena Kichwa de Sarayaku vs Ecuador (2012) Serie C no 245, Pars. 261, 263 IACtHR, Pueblo Ind†gena Kichwa de Sarayaku vs Ecuador (2012) Serie C no 245, Par. 263 European Court of Human Rights, Zander vs Sweden App no 14282/88 (1993), Par. 24; Shelton Dinah, ‘ Human Rights, Health & Environmental Protection: Linkages in Law & Practices’: A Background Paper for the World Health Organization’ (Health and Human Rights Working Paper Series No.1, 2002) 21

Procedural Rights

295

by them and their right to the protection of their physical integrity’.1215 Seven judges dissented with the ruling of the Court. In their view, an independent and impartial domestic tribunal should review the decision to renew the permit as well as to establish a degree of hazard that the petitioners are facing.1216 By virtue of these decisions, the European Court of Human Rights recognized the importance to obtain a judicial review and remedy for environmental harm arising from pollution provided that a direct causal link between the environmental harm and the violation of the rights embodied in the Convention is clearly established. The realization of human rights and environmental conservation strongly depends on the effective implementation of the right of access to justice. This requires the existence of adequate instances and independent authorities that execute judicial and administrative decisions. In principle, domestic courts and tribunals settle litigations relating to environmental damage and human rights violations against the State or third parties while at international level, regional human rights tribunals constitute the only instances capable of receiving complaints against States for actions or omissions relating to environmental damage and the realization of human rights.1217 In recent years, international financial institutions have devoted efforts to implement quasi-judicial mechanisms to ensure the right of access to justice in their policies and projects. For instance, the Board of the World Bank set up the World Bank Inspection Panel. This body deals with claims of local residents believing to have suffered due to breaches of World Bank policies. Unfortunately, these mechanisms are still unsatisfactory due to the lack of enforcement capacity.1218 In fact, one of the major problems in the realization of the right of access to justice and the conservation of the environment is the difficulty to effectively enforce environmental judgements and decisions at national and international levels.1219 In Section III of this Chapter, the litigation between Texaco Oil Company – Chevron and Ecuadorian citizens illustrates the legal, political and economic battles 1215 European Court of Human Rights, Balmer-Schafroth and Others vs Switzerland App no 67\1996\686\876 (1997), Par. 40 1216 European Court of Human Rights, Balmer-Schafroth and Others vs Switzerland App no 67\1996\686\876 (1997); Shelton Dinah, ‘ Human Rights, Health & Environmental Protection: Linkages in Law & Practices’: A Background Paper for the World Health Organization’ (Health and Human Rights Working Paper Series No.1, 2002) 21 – 22; Shelton, ‘The Environmental Jurisprudence of International Human Rights Tribunals’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 10 1217 Shelton, ‘The Environmental Jurisprudence of International Human Rights Tribunals’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 2 1218 Saladin, ‘Public Participation in the Era of Globalization’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment (2003) 67 1219 Stein, ‘The Role of Judiciary’ in Adrian J Bradbrook and others (eds), The Law of Energy for Sustainable Development (2005) 561

296

The Link Between Human Rights and the Environment

between the Republic of Ecuador, the transnational oil companies and those affected by natural resource extraction, to obtain redress for damage resulting from oil extraction in Ecuador’s Amazon rainforest.

3.

Environmental Impact Assessment (EIA)

The Environmental Impact Assessment (EIA) constitutes an international domestic legal procedure for evaluating potential environmental hazards caused by development projects at an early stage of planning and before major decisions to implement the project are taken.1220 Since EIA hast its roots in the precautionary principle, its main functions are on the one side to inform decision-makers about likely environmental effects of proposed project activities. On this basis, public authorities are able to decide whether to authorize such a project or not.1221 On the other side, EIAs ensure the informed participation of potentially affected people in the decision-making process.1222 Initially, EIA was conceived as a tool designed to protect only domestic environments.1223 In effect, under the 1969 National Environmental Policy Act, the United States established EIA in domestic law for the first time. Thereafter, several national legal systems have progressively integrated this mechanism as a crucial tool of environmental management.1224 At international level, the obligation to carry out EIAs is part of numerous international conventions, is part of the lending policies of multilateral development banks, and is part of several non-binding instruments adopted at regional and global levels.1225 Internationally, EIA has its origins in the 1972 Stockholm Declaration. Even though this declaration does not expressly include the EIA, the necessity of holding EIAs can be inferred from Principles 14 and 15. According to these Principles, rational planning constitutes an essential instrument for reconciling development and the protection of the environment. Therefore, human facilities shall be planed to avoid adverse effects on the environment. Another non1220 Article 1 (iv) of the 1991 UNECE Convention on Environmental Impact Assessment in a Transboundary Context; Epiney and Scheyli, Strukturprinzipien (1998) 126 – 127; Epiney and Scheyli, Umweltvölkerrecht (2000) 132 – 133; Sands, Principles of International Environmental Law (2003) 799 – 800 1221 Sands, Principles of International Environmental Law (2003) 800; Birney and others, International law & Environment (2009) 164 1222 Sands, Principles of International Environmental Law (2003) 800 1223 Beyerlin und Marauhn, International Environmental Law (2011) 824 1224 Sands, Principles of International Environmental Law (2003) 800; Birney and others, International law & Environment (2009) 165 1225 Epiney and Scheyli, Umweltvölkerrecht (2000) 136 – 134; Sands, Principles of International Environmental Law (2003) 800

Procedural Rights

297

binding instrument which embraces EIA is the Rio Declaration. In Principle 17, EIA is defined as a national instrument which should be undertaken for proposed activities likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. As well as these non-binding international instruments, the requirement to hold EIAs is contained in binding instruments. The 1991 Convention on Environmental Impact Assessment in a Transboundary Context, also called the Espoo Convention, was developed within the framework of UNECE and establishes a general obligation to implement EIAs in a transboundary context.1226 This instrument constitutes a comprehensive agreement and contributed to the harmonization of European law and legal practice.1227 Similarly, the 1992 Convention on Biological Diversity calls state parties in Article 14 (1) (a) to require environmental impact assessments of projects likely to have significant adverse effects on biological diversity. Within the framework of the CBD, guidelines have been developed to carry out such assessments.1228 These guidelines are the Akw¦: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessments regarding Developments Proposed to Take Place on, or Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities as well as the Voluntary Guidelines on Biodiversity – Inclusive Impact Assessment. All these international agreements are evidence of international support of EIAs. On the basis of wide international recognition, the question that arises at this point is which status EIAs have in international law. In order to answer to this question, it is necessary to differentiate between transboundary EIAs and domestic EIAs. On the ground of the state’s obligation ‘to ensure that activities within their jurisdiction or control do not damage the environment of other States or of areas beyond the limits of national jurisdiction’1229 as well as of a state’s obligation of transboundary cooperation, notification and consultation, the obligation of states to carry out EIAs has been recognised at international level as a requirement of customary international law in respect to harmful activities which may give rise to transboundary consequences.1230 This recognition can be seen in 1226 According to Article 2 (3) of the Convention on Environmental Impact Assessments in a Transboundary Context, state parties are required to ensure that an environmental impact assessment is undertaken ‘prior to a decision to authorize or undertake a proposed activity listed in Appendix I that is likely to have a significant adverse transboundary impact.’ 1227 Birney and others, International law & Environment (2009) 168 1228 Voluntary Guidelines on Biodiversity – Inclusive Impact Assessment; Akw¦:Kon Guidelines 1229 Principle 2 of the Rio Declaration 1230 Sands, Principles of International Environmental Law (2003) 800; Birney and others, International law & Environment (2009) 169

298

The Link Between Human Rights and the Environment

international instruments1231, state practice1232, lending policies of multilateral development banks1233, and international case law. The cases of Nuclear Testing (New Zealand vs France), Gabcˇ†kovo-Nagymaros (Hungary vs Slovakia) and Pulp Mills (Argentina vs Uruguay) show the growing acceptance of the obligation to carry out transboundary EIAs as a principle of international law. In the Nuclear Test Case, in 1995 New Zealand submitted an application before the ICJ against France’s decision to carry out underground nuclear tests without conducting prior assessment of their impact on the environment, thereby violating France’s obligation, established under Article 16 (2) of the 1986 Noumea Convention.1234 New Zealand asserted that customary international law required environmental impact assessments to be carried out ‘in relation to any activity which is likely to cause significant damage to the environment, particularly where such effects are likely to be transboundary in nature’.1235 The Court did not address this substantive issue since it dismissed the request on the grounds of a strict interpretation of Paragraph 63 of the judgement of the Court of 20 December 1974 in the Nuclear Test Case (New Zealand vs France).1236 In a dissenting opinion, Judge Weeramantry argued, however, that the requirement to perform an environmental impact assessment ‘is gathering strength and in1231 Principle 17 of the Rio Declaration; Principle 12 of the 1987 Goals and Principles of EIA; the 1991 UNECE Convention on Environmental Impact Assessment in a Transboundary Context; and Article 7 of the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities 1232 In some states, national EIA legislation has explicitly ruled on transboundary effects. Examples of such legislation are: The German Act on Environmental Impact Assessment (1990); the Finnish Act on Environmental Impact Assessment Procedure (1992); the Canadian Environmental Assessment Act (2012). 1233 Multilateral development banks have developed their own environmental impact assessment procedures. An example of this is the World Bank’s Environmental Assessment policy and procedures, described in Operational Policy 4.01 (OP 4.01) and Bank Procedures 4.01 (BP 4.01). For the World Bank, EIA constitutes a safeguard policy to examine the potential environmental risks and benefits associated with the Bank’s lending operations. 1234 Art. 16 (2) of the Noumea Convention: ‘Each Party shall, within its capabilities, assess the potential effects of such projects on the marine environment so that appropriate measures may be taken to prevent any substantial pollution of, or significant and harmful changes within, the Convention Area.”; ICJ, Request for an Examination of the Situation with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand vs France) Case – Application Instituting Proceedings, ICJ Reports 1995, Pars. 74 – 88 1235 ICJ, Request for an Examination of the Situation with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand vs France) Case – Application Instituting Proceedings, ICJ Reports 1995, Par. 89 1236 ICJ, Request for an Examination of the Situation with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand vs France) Case ICJ Reports 1995, Par. 68 (1)

Procedural Rights

299

ternational acceptance, and has reached the level of general recognition which this Court should take note of.’1237 In the Gabcˇ†kovo-Nagymaros case, concerning the dispute between Hungary and Slovakia on the construction of two barrages on the Danube River, the Court asserted that the Project’s impact upon, and its implications for, the environment were a key issue. Therefore, current standards had to be taken into consideration with the aim to evaluate the environmental risks. Bearing in mind that vigilance and prevention were required on account of the often irreversible damage to the environment and of the limitations inherent in the very mechanism of repairing this type of damage, the Court ruled that the Parties together should look afresh at the effects on the environment of the operation of the Gabcˇ†kovo power plant.1238 Once again, Judge Weeramantry pointed out in his Separate Opinion that the EIA ‘was gathering strength and international acceptance, and had reached the level of general recognition which this Court should take note of.’1239 In both cases, the Court did not make any pronouncement on the normative status of EIA. Finally, in case Pulp Mills on the River Uruguay1240, the Court expressly acknowledged the international status of the obligation to carry out transboundary EIAs as it clearly stated ‘[…] a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on shared resources.’1241 On this basis of these developments, today transboundary EIA constitutes an imperative obligation of the states.1242 In relation to the international status of EIAs at the domestic level, for the time being, the obligation to conduct EIAs has not yet been recognized as a legal obligation under international law.1243 However, there is increasing evidence 1237 ICJ, Request for an Examination of the Situation with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand vs France) Case – Diss Op Weeramantry, ICJ Reports 1995, p 344 1238 ICJ, Gabcˇ†kovo-Nagymaros Project (Hungary vs Slovakia) ICJ Reports 1997, Par. 140 1239 ICJ, Gabcˇ†kovo-Nagymaros Project (Hungary vs Slovakia) – Sep Op Weeramantry, ICJ Reports 1997, p 111 1240 The Pulp Mill case arose from an application filed by Argentina against Uruguay in respect of a dispute concerning the breach of Uruguay’s obligation of the 1975 Uruguay River Statute since Uruguay had unilaterally authorized the construction and commissioning of two pulp mills on the banks of the River Uruguay which constitutes the boundary between both states. ICJ, Pulp on the River Uruguay (Argentina vs Uruguay) ICJ Reports 2010, Pars. 25 – 47. 1241 ICJ, Pulp on the River Uruguay (Argentina vs Uruguay) ICJ Reports 2010, Par. 204 1242 Sands, Principles of International Environmental Law (2003) 824; Birney and others, International law & Environment (2009) 169; Beyerlin und Marauhn, International Environmental Law (2011) 232 1243 Birney and others, International law & Environment (2009) 167

300

The Link Between Human Rights and the Environment

pointing towards a strengthening of opinion iuris of domestic EIAs. In effect, non-binding agreements1244, states practices, the lending policies of multilateral development banks and decisions of regional human rights courts have included the obligation to carry out EIAs when dealing with impact on domestic environments. This has provided a framework for state bodies and civil society to protect and respect human rights through the conservation of domestic environment.1245 This new concept has been evolved in recent years by regional human rights courts which have recognized the importance of EIAs for environmental conservation and the realization of human rights. Accordingly, the European Court of Human Rights ruled in the action of Tatar vs Romania that the authorities have a duty to carefully assess the possible risks of an industrial activity and to take all reasonable and appropriate measures to protect the rights of affected parties to private life and home and, more generally, to the enjoyment of health in a protected environment.1246 Within the Inter-American Human Rights system, the Court developed in its case law the concept of the Environmental and Social Impact Assessment (ESIA). The ESIA has been understood as an obligation of the Inter-American States to protect indigenous peoples’ human rights, in particular their right to hold property.1247 The Inter-American Court of Human Rights introduced the concept of ESIA in the Saramaka case.1248 In the analysis of this case, the Court linked the requirement to evaluate and mitigate the possible negative effects of development activities on the environment with the identification of direct and indirect impact on the enjoyment and use of lands and resources traditionally used for economic, social, cultural or spiritual purposes.1249 At international level, ESIA is anchored in Article 7 (3) of C ILO 169.1250 Furthermore, several guidelines have 1244 Principle 17 of the Rio Declaration; the 1987 Goals and Principles of EIA 1245 Epiney and Scheyli, Umweltvölkerrecht (2000) 136 – 134, 143 1246 European Court of Human Rights, Taskin and Others vs Turkey App no 46117/99 (2004) Par. 113, Par. European Court of Human Rights, Tatar vs Romania App no 67021/01 (2009) Pars. 88, 112 1247 IACtHR, Saramaka People vs Surinam (2007) Serie C No. 172, Par. 129; Inter-American Commission on Human Rights, ‘Indigenous and tribal peoples’ rights over their ancestral lands and natural resources: Norms and Jurisprudence of the Inter-American Human Rights System’ OEA/Ser.L/V/II (2009) 245 1248 IACtHR, Saramaka People vs Surinam (2007) Serie C No. 172, Par. 129 1249 Inter-American Commission on Human Rights, ‘Indigenous and tribal peoples’ rights over their ancestral lands and natural resources: Norms and Jurisprudence of the InterAmerican Human Rights System’ OEA/Ser.L/V/II (2009) 246, 248, 254 1250 Article 7 (3) of the C – ILO 169 states ‘[g]overnments must ensure that, whenever appropriate, studies are carried out, in co-operation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies must be considered as fundamental criteria for the implementation of these activities.’

Procedural Rights

301

been developed to carry out impact assessments related to indigenous peoples. For example, the World Bank Operational Policy OP 4.01 addresses the potential environmental impact of a proposed project and designs appropriate mitigation, management and monitoring measures.1251 Similarly, the Bank developed a policy, called World Bank Procedure 4.10 which provides guidance for implementing ESIAs in the context of bank-financed projects implemented in indigenous peoples’ territories. According to the Inter-American Court of Human Rights, ESIAs must conform to relevant international standards and best practice. The Court recommended the use Akw¦:Kon Guidelines, created within the framework of the CBD, since they provide ‘the most comprehensive and often used standard on indigenous and tribal peoples for EIAs.1252 Another important aspect dealt by the Court in the Saramaka case was the participation of indigenous peoples during a prior ESIA. In the view of the Court, states have the duty to ensure that the studies are carried out ‘in cooperation’ with the peoples concerned since their knowledge is crucial for identifying and assessing the impact of a project.1253 Moreover, the participation of indigenous peoples in EIAs guarantees that these peoples are aware of the health and environmental risks and able to accept proposed development or investment plans in a mindful and voluntary manner.1254 As can be observed, thanks to international human rights case law, the obligation to carry out EIAs is consolidating as an important mechanism to protect domestic environments and to ensure the realization of human rights. The implementation of EIA at domestic level further constitutes a decisive instrument for the realization of procedural rights such as access to information and the right to public participation in the decision-making process. On the one hand, EIAs enable those potentially affected on the basis of public access to the conclusions of impact assessments to weigh the risks of industrial extraction to their health and to the environment.1255 On the other hand, EIAs allow people

1251 World Bank, Bank Procedure 4.01 – Environmental Assessment (2005), Annex A: Definitions Par. 2 1252 IACtHR, Saramaka People vs Surinam (2008) Interpretation of the Judgment Serie C No. 185, Par. 41 footnote 23 1253 Article 7 (3) of the C – ILO 169; Inter-American Commission on Human Rights, ‘Indigenous and tribal peoples’ rights over their ancestral lands and natural resources: Norms and Jurisprudence of the Inter-American Human Rights System’ OEA/Ser.L/V/II (2009) 266 – 267 1254 IACtHR, Saramaka People vs Surinam (2008) Interpretation of the Judgment Serie C No. 185, Par. 40; Inter-American Commission on Human Rights, ‘Indigenous and tribal peoples’ rights over their ancestral lands and natural resources: Norms and Jurisprudence of the Inter-American Human Rights System’ OEA/Ser.L/V/II (2009) 246 1255 European Court of Human Rights, McGinley and Egan vs The United Kingdom App No. 10/ 1997/794/995 – 996 (1998), Par. 97; European Court of Human Rights, Guerra and others vs

302

The Link Between Human Rights and the Environment

affected by a project to actively participate in the process with a view to express their position and interest.1256 In this context, EIAs constitutes a mechanism which prevents possible environmental damage by enabling States, corporations and civil society to undertake adequate measures before the start of an extraction or development project. After the analysis of the status of EIAs at international level, particular attention should be paid to the content and scope of the EIA. In the Pulp Mills case, the ICJ asserted that general international law did not specify the scope and content of environmental impact assessments. Consequently, the Court upheld that it was for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, as regarding the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as the need to exercise due diligence in conducting such an assessment.1257 This assertion of the Court was reflected in state practice since each state has regulated the content of EIA legislation applicable in their jurisdiction. In relation to transboundary EIAs, international instruments, such as the 1991 UNECE Convention on EIAs1258 on Transboundary Context and the 1987 Goals and Principles of EIAs, have contributed to establish a minimum content of EIAs. Notwithstanding the differences in the wording of the obligation to perform EIAs, three sharing criteria can be inferred from international instruments and case law.1259 The first criterion refers to the sum of all adverse effects on the environment which are significant and have a high probability of coming to pass. This means that the EIA must take into account the possible impact on all environmental media and ecological systems liable to be affected by the project.1260 The second requirement is linked to the probability of an environmental

1256

1257 1258 1259 1260

Italy App No. 116/1996/735/932 (1998), Par. 60; European Court of Human Rights, Tatar vs Romania App No. 67021/01 (2009), Pars. 88, 93 and 96 Article 2 (6), Article 3 (8) and Article 4 (2) of the Convention on Environmental Impact Assessment in a Transboundary Context give the public a greater say in transboundary issues; Epiney and Scheyli, Umweltvölkerrecht (2000) 144; Handl, ‘Human Rights and the Protection of the Environment’ , in Eide, Krause and Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2001) 320 ICJ, Pulp on the River Uruguay (Argentina vs Uruguay) ICJ Reports 2010, Par. 205 Principle 14 of the 1987 Goals and Principles of EIA; Art. 4 (1) of the 1991 UNECE Convention on EIA on Transboundary Context Principle 17 of the Rio Declaration; Article 14 (1) (a) of the Convention on Biological Diversity ; Article 37 (1) of the Draft International Covenant on Environment and Development; Epiney and Scheyli, Strukturprinzipien (1998) 130 – 131 Article 1, 2 (a), 7 of the ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities; Principle 1 of the 1987 Goals and Principles of EIA; Article 2 (3) the 1991 UNECE Convention on Environmental Impact Assessment in a Transboundary Context; Article 14 (1) (a) of the Convention on Biological Diversity ; Epiney and Scheyli,

Procedural Rights

303

threat occurring. Under the precautionary principle, certainty that an effect will occur is not needed to carry out an EIA.1261 The third requirement relates to the relevance of the potential risk which legitimatizes the imposition of obligatory EIAs.1262 International environmental agreements and the ICJ in the Pulp Mills Case have also established that EIAs shall be conducted prior to the implementation of a project so that the results obtained from the EIA serve as basis for further decision-making processes.1263 The necessity to assess environmental effects of a project, however, goes beyond the planning stage. In this sense, monitoring is a decisive tool which complements EIA. Monitoring is an ongoing process which takes place throughout the life of the project, and in some cases beyond it. Its main objective is to check initial EIA preconditions and to inform national authorities about the need to undertake further measures with a view to reduce or avoid pollution or environmental damage.1264 In case Gabcikovo-Nagymaros, the ICJ stated that new norms and standards had to be taken in consideration ‘not only when States contemplate new activities but also when continuing with activities began in the past.’1265 Consequently, the Court recognized the importance of carrying out prior EIA as well as monitoring the environmental risks and impacts caused by ongoing project activities.1266 This view of the Court was confirmed by Judge Weeramantry as he pointed out in his separate opinion that EIA was a dynamic principle that went beyond an assessment before the start of a project. Similarly, the Court in the Pulp Mills Case ratified the necessity of continuous monitoring of environmental effects throughout the life of the project.1267 On this basis, EIAs are to be viewed as a continuing assessment and evaluation mechanism which must be carried out as long as the project is in operation, and even beyond.1268 From the above analysis it can be concluded that the obligation to carry out prior EIAs when a proposed project is likely to cause significant transboundary impact has consolidated into international customary law while the performance of EIAs at domestic level is still not yet considered an international obli-

1261 1262 1263 1264 1265 1266 1267 1268

Strukturprinzipien (1998) 132; Epiney and Scheyli, Umweltvölkerrecht (2000) 137; Birney and others, International Law & Environment (2009) 171 Epiney and Scheyli, Strukturprinzipien (1998) 132; Epiney and Scheyli, Umweltvölkerrecht (2000) 138; Birney and others, International Law & Environment (2009) 171 Epiney and Scheyli, Strukturprinzipien (1998) 132 – 133; Epiney and Scheyli, Umweltvölkerrecht (2000) 138; Birney and others, International Law & Environment (2009) 171 ICJ, Pulp on the River Uruguay (Argentina vs Uruguay) ICJ Reports 2010, Par. 205; Epiney and Scheyli, Strukturprinzipien (1998) 126 – 127, 136 Birney and others, International Law & Environment (2009) 165 ICJ, Gabcˇ†kovo-Nagymaros Project (Hungary vs Slovakia) ICJ Reports 1997, 78 Birney and others, International Law & Environment (2009) 170 ICJ, Pulp on the River Uruguay (Argentina vs Uruguay) ICJ Reports 2010, Par. 205 ICJ, Gabcˇ†kovo-Nagymaros Project (Hungary vs Slovakia) – Sep Op Weeramantry, ICJ Reports 1997, Par. 111

304

The Link Between Human Rights and the Environment

gation. Nevertheless, there have been developments that support the growing international acceptance of the obligation to carry out EIA at domestic level. In effect, decisions of regional human rights courts have characterized EIAs as a crucial instrument to protect national environments and the realization of human rights. Critical issues still remain with regard to the content and scope of EIAs. The lack of clarification of EIA content and scope at international level prevents the harmonization of minimum technical criteria for domestic legislations. Therefore, it is necessary to establish minimum standards to limit the margin of discretion that state authorities have when authorizing polluting projects.

III.

Corporate Responsibility and Accountability for Transnational Corporations and Other Business Enterprises: Case of Study Texaco Oil Company and Chevron vs Lago Agrio Plaintiffs

In this Section, the case Texaco Oil Company (Texpet) and Chevron vs Lago Agrio plaintiffs will be analysed, on the one hand with the aim to demonstrate the negative effects of the extraction of energy resources on the environment and on the realization of human rights. On the other hand, the case provides basic information to illustrate the challenge that States are facing to make Transnational Corporations (TNCs) accountable for such damage and violations. The analysis of this case combines questions of environmental law, human rights, jurisdiction, judicial independence and treaty interpretation.1269

1.

Texaco Oil Company (Texpet) and Chevron vs Lago Agrio Plaintiffs

The TexPet-Chevron case illustrates on the one side the difficulties faced by Ecuadorian citizens directly affected by oil extraction to obtain effective redress at international and domestic level. On the other side, it demonstrates the environmental and social impact of poor operational practices and misconduct of multinationals and state-owned companies operating in countries where regulations and institutions are weak or non-existent.1270 The analysis of the case in the present study is based on government documents, judicial decisions, press articles and especially on previous research undertaken by Professor Judith 1269 Kass Stephen, ‘Lessons From Lago Agrio Environmental Pollution Case’ (2011) New York Law Journal 1270 Patel Suraj, ‘Delayed Justice: A Case of Study of Texaco and the Republic of Ecuador’s Operations, Harms and Possible Redress in the Ecuadorian Amazon’ (2012) 5

Corporate Responsibility and Accountability for Transnational Corporations

305

Kimerling who since the 1990s has investigated the impact caused by TexPet operations in Ecuador.1271 It must also be mentioned that during the research phase of this case, the author had difficulties to access particularly sensitive Ecuadorian government documents as well as agreements between TexPet and the Republic of Ecuador. History of TexPet’s Operations in Ecuador In 1973, the Republic of Ecuador signed a joint venture agreement with Texaco Oil Company (TexPet)1272 with the aim to extract oil in Ecuador’ northern Amazon in conjunction with the Ecuadorian state-owned company, Petroecuador. Within the framework of this contract, Petroecuador was the largest shareholder while Texaco took over the operational activities of the entity such as the design, procurement, installation, management and operation of the oil drilling infrastructure.1273 In twenty-eight years of operation, TexPet extracted approximately 1.5 billion barrels of crude, drilled oil wells and built 18 central production stations in this area.1274 According to Amazon Watch, an environmental NGO, TexPet profited more than 30 billon US dollars while Chevron affirmed that the company obtained during its operations only 490 million US Dollars in profits after royalties and taxes.1275 At the beginning of TexPet’s operation in the 1970s, Ecuador had neither experience in the oil exploitation nor environmental provision in its legislation. It was not until 1971 that environmental provisions were incorporated into Ecuadoran legislation. With respect to regulations regarding the extraction of natural resources, Ecuador’s Law of Hydrocarbons required oil field operators to “adopt necessary measures to protect flora, fauna and other natural resources” and prevent contamination of water, air and soil. This requirement was included in the 1973 Texaco’s Production Contract.1276 Further environmental legislation 1271 Professor Kimerling published in 1991 a study called Amazon Crude. This is the first document that revealed the widespread pollution as well as environmental and social impact from the extraction of oil. The study served as a basis for suit against TexPet in the United States of America. This document is available in Spanish and German. 1272 In that time, Texaco was the indirect controlling and owning parent of TexPet. First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Par. 69 1273 Patel Suraj, ‘Delayed Justice: A Case of Study of Texaco and the Republic of Ecuador’s Operations, Harms and Possible Redress in the Ecuadorian Amazon’ (2012) 9 1274 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 449 – 450 1275 Kimerling Judith, ‘The Environmental Audit of Texaco’s Amazon Oil Fields: Environmental Justice or Business as Usual?’ (1994) vol 7 Harvard Human Rights Journal 199, 207 1276 Decreto Supremo No 925 (1973), ch XI, cl 46.1

306

The Link Between Human Rights and the Environment

such as Law of Waters adopted in 19721277 and Law of Fishing and Fishing Development1278 adopted in 1974, embodied provisions seeking to prevent pollution and protect the environment. In 1976, the Law for the Prevention and Control of Environmental Contamination was adopted in Ecuador with the aim to control pollution. In addition to the development of an environmental legislative framework, environmental protection strongly depended on the transfer of oil technology by the operator in order to improve the extraction process. Recognizing Texaco’s experience in oil extraction, Ecuador trusted the operational practices and standards of the Company. In effect, Texaco Oil Company (TexPet) agreed in the production agreement, among other things, to use ‘modern and efficient’ equipment in its operations,1279 to provide ‘practical training and studies’ to Ecuadorian students and workers on oil fields1280 as well as to turn over field operations and equipment to the Ecuadorian State Oil Company, Petroecuador ‘in good condition’ on termination of the contract.1281 Under these conditions, Texaco had the freedom to set its own environmental standards and policies. Unfortunately, such standards and practices did not encompass environmental protection and monitoring so that serious environmental damage was caused to the Amazon rainforest.1282 The main sources of environmental damage caused by Texaco’s and Petroecuador’s operation occurred in the three stages of oil development: exploration, production and transportation.1283 During the exploratory phase, water is pumped deep into underground reservoirs to press out oil along with the socalled ‘formation water’. This water refers to water in hydrocarbon-bearing formations containing hydrocarbons such as benzene and polycyclic aromatic hydrocarbons (PAHs) and heavy metals such as mercury. When such water comes from strata, it contains toxic salts which are particularly harmful to live animals and plants.1284 In Ecuador TexPet deposited ‘formation water’ and drilling wastes into unfenced and unlined open-air pits. This procedure during exploration has had a negative impact on the environment and human health 1277 1278 1279 1280 1281 1282

Decreto Supremo No 369 (1972) Ley de Pesca y Desarrollo Pesquero 1974 Decreto Supremo No 925 (1973), ch IX, cl 40.1 Decreto Supremo No 925 (1973), ch IX, cl 38.1 Decreto Supremo No 925 (1973), ch V, cl 18.2 (a) und (b); ch IX, cl 51 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 433 – 436 1283 Patel Suraj, ‘Delayed Justice: A Case of Study of Texaco and the Republic of Ecuador’s Operations, Harms and Possible Redress in the Ecuadorian Amazon’ (2012) 10 1284 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 452

Corporate Responsibility and Accountability for Transnational Corporations

307

since TexPet abandoned the pits instead of emptying and treating them as in the case in United States and in other countries whose legislations establish adequate environmental controls. For instance, most of the water produced on US oil fields is re-injected underground because of its high level of salinity and the high cost of its treatment.1285 In the production phase, oil extracted from operational wells is pumped to production stations where the oil is separated from ‘produced water’. The components of such water are formation water, gas and heavy metals. In Ecuador, TexPet discharged produced water and drilling wastes in unlined and open waste pits. Soil and water samples taken in areas near wells revealed that those components present in produced water were seeped into the soil and groundwater.1286 Until handing over operations to Petroecuador in 1990, Texaco’s operations generated over 3.2 million gallons of produced water every day. This toxic wastewater contained between 1,600 – 16,000 gallons of crude oil which was discharged into the environment through unlined, open-air earthen waste pits without any treatment or monitoring.1287 Since 1979, such practices have been prohibited by federal law in the USA. With respect to the transportation, approximately 16.8 million gallons of crude oil were accidentally spilled into the environment during Texaco’s operation of the Trans-Ecuadorian pipeline and subsidiary pipelines.1288 This pipeline system which crosses the Amazon Basin was not designed for environmental mitigation but rather for operational purposes. In fact, the nearest valve for a spill could be tens of kilometres away ; as a result, the detection of an oil spill and the evacuation of a breached line took days after the occurrence of a spill.1289 In conclusion, oil exploration, production and transportation of Petroecuador and 1285 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 452; Patel Suraj, ‘Delayed Justice: A Case of Study of Texaco and the Republic of Ecuador’s Operations, Harms and Possible Redress in the Ecuadorian Amazon’ (2012) 11 1286 Patel Suraj, ‘Delayed Justice: A Case of Study of Texaco and the Republic of Ecuador’s Operations, Harms and Possible Redress in the Ecuadorian Amazon’ (2012) 12 1287 Kimerling Judith, ‘Oil, Contact and Conservation in the Amazon: Indigenous Huaorani, Chevron and Yasuni’ (2013) vol 24 Colorado Journal of International Environmental Law and Policy 43 – 115, 60 1288 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 457 1289 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 458; Patel Suraj, ‘Delayed Justice: A Case of Study of Texaco and the Republic of Ecuador’s Operations, Harms and Possible Redress in the Ecuadorian Amazon’ (2012) 13

308

The Link Between Human Rights and the Environment

TexPet have led to environmental damage as a result of waste containing toxics and spills. TexPet’s Exit from Ecuador and Environmental Audit In 1992 Texaco’s contract expired and Petroecuador took over the full control of Texaco’s facilities. Months before the expiration of Texaco’s contract, a Canadian consulting firm, HTB Agra Ltd (Agra), was appointed by Texaco and Petroecuador to conduct an environmental audit of the fields operated by both companies.1290 According to press reports, the purpose of the audit was to determine the direct and indirect impact of oil extraction on environmental media (soil, water and wind), biotic resources and humans.1291 To carry out the audit, Texaco, Petroecuador and the Ministry of Energy and Mines of Ecuador (MEM) established two committees, a Technical and a High Level Committee. Both committees comprised representatives and senior officials of the three above-mentioned entities who adopted decisions on the basis of consensus.1292 In this sense, the audit and the decision-making process were exclusively led by the interested parties themselves, Texaco and Petroecuador as well as by the Ecuadorian government, thereby excluding residents affected by the extraction operations and NGOs from participating in the audit.1293 At the beginning of the audit process, two main changes were undertaken by the Committees. First, the audit scope was restricted to the impact of TexPet’s operations on the environment, thereby eliminating a possible follow-up study on the socioeconomic impact of the extraction. The second change was related to Texaco’s argument that Petroecuador, as co-owner of the concession, shared financial responsibility for any environmental damage. Moreover, Texaco asserted that the Ecuadorian government was also responsible for damage since the MEM had approved Texaco’s operation in the Amazon. As a result, Petroecuador’s and Texaco’s interests in the audit were closely aligned while the Ecuadorian government faced a potential conflict of interest.1294 1290 ‘Auditor†a Ambiental Par. la Texaco’ Hoy (Quito, 27 February 1992); ‘Hechos claves de Texaco’ Hoy (Quito, 05 August 1994); Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 468 1291 ‘Dos aÇos Par. auditor†a’ Hoy (Quito, 27 January 1994) 1292 ‘Dos aÇos Par. auditor†a’ Hoy (Quito, 27 January 1994); Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 469 1293 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 469 1294 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of

Corporate Responsibility and Accountability for Transnational Corporations

309

In November 1992, the audit criteria were approved. While the purpose of the audit contract was to ascertain the extent of environmental impact caused by Texaco’s practices, the audit criteria changed this aim. According to the ‘Final Assessment Criteria for an Environmental Evaluation of the Petroecuador Consortium Oil Fields’, the audit aimed to ‘verify compliance with legal and technical requirements of the Republic of Ecuador and standard international oil industry practices for rain forest areas […]’1295 for the period of Texaco’s operations in Ecuador.1296 Based on this objective, the audit concluded that Ecuadorian laws and regulations lacked ‘specific environmental standards against which to assess compliance’ and that according to Article 31 (t) the Hydrocarbon law (Decree 101), introduced in August 1982, Texaco was required to carry out their oil operations ‘in accordance with international practices in this matter.’1297 In this sense, the audit used as a legal foundation for its analysis the then-existing Ecuadorian law and compliances standards established by the oil industry for rain forest areas.1298 This conclusion constituted a distorted interpretation of Article 31 (t) which stated that Petroecuador and contractors or partners, in the exploration and exploitation of hydrocarbons, refining, transport and marketing, were required ‘to perform the oil operation as per the Law and Regulations to protect the environment and the national security and in accordance with international practices on the protection of fishing resources and agricultural industry.’1299 As a result, Texaco’s environmental record was merely measured by poor and unregulated practices and compliance standards defined by the hydrocarbon industry in other remote areas in developing countries and without taking into consideration the development of environmental legislation in

1295 1296 1297 1298

1299

Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 469 – 470 HBT AGRA Limited, ‘Final Assessment Criteria for an Environmental Evaluation of the PetroEcuador Consortium Oil Fields’ (unpublished document, 1992), 1 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 471 HBTAGRA Limited, ‘Environmental Assessment of the PetroEcuador-Texaco Consortium Oil Fields, Vol 1: Environmental Audit Report’ (draft audit report, 1993), 4 – 6 HBTAGRA Limited, ‘Environmental Assessment of the PetroEcuador-Texaco Consortium Oil Fields, Vol 1: Environmental Audit Report’ (draft audit report, 1993),4 – 2, 4 – 6; Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 471 – 472 Art. 31 (t) Ley de Hidrocarburos (Decreto 101): ‘PETROECUADOR y los contratistas o asociados, en exploraciûn y explotaciûn de hidrocarburos, en refinaciûn, en transporte y en comercializaciûn, est‚n obligados, en cuanto les corresponda, a lo siguiente: (t) Conducir las operaciones petroleras de acuerdo a las Leyes y Reglamentos de protecciûn del medio ambiente y de la seguridad del pa†s y con relaciûn a la pr‚ctica internacional en materia de preservaciûn de la riqueza ictiolûgica y de la industria agropecuaria.’

310

The Link Between Human Rights and the Environment

Ecuador such as the 1972 Law of Water which expressly prohibited ‘all water contamination that could affect human health or the development of flora or fauna.’1300 On grounds of these evaluation criteria, the HTB Agra Draft Audit Report provided several recommendations. It recommended, among other things, that well site pits should be closed; solid waste should be cleaned up; waste management program and air quality monitoring program should be developed; and oil should not be discharged in the environment.1301 Despite of these recommendations, Texaco argued that the audit ‘independently concluded that Texaco Oil acted responsibly and that there was no lasting or significant environmental impact from the former consortium operations.’1302 In 1994, the audit process ended; however, the results of the audit were not released due to a confidentiality agreement between Texaco and the Ecuadorian government.1303 By the time, villagers and members of indigenous communities had been suing Texaco for environmental damage done during its operations in Ecuador before US courts.1304 The Aguinda Case Before US Courts In November 1993, villagers and member of indigenous communities filed a class action lawsuit against Texaco in Federal Court in White Plains, New York where Texaco had its headquarters. According to Rule 23 (a) of the Federal Rules of Civil Procedure, class action allows one or more members of a class to sue or to be sued as representative parties on behalf of a large group of similar situated plaintiffs.1305 In the lawsuit of Aguinda vs Texaco, the plaintiffs sought to rep-

1300 Art. 22 of the Law of Waters (1972); Kimerling Judith, ‘The Environmental Audit of Texaco’s Amazon Oil Fields: Environmental Justice or Business as Usual?’ (1994) vol 7 Harvard Human Rights Journal 199, 214 – 222; Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 472 – 473 1301 HBTAGRA Limited, ‘Environmental Assessment of the PetroEcuador-Texaco Consortium Oil Fields, Vol 1: Environmental Audit Report’ (draft audit report, 1993) 10 – 10 to 10 – 12 1302 Texaco, ‘Background on Texaco Petroleum Company’s Former Operations in Ecuador’ accessed 13 April 2013; Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 474 1303 ‘Hechos claves de Texaco’ Hoy (Quito, 05 August 1994) 1304 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 474 1305 Rule 23 of the Federal Rules of Civil Procedure; Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs

Corporate Responsibility and Accountability for Transnational Corporations

311

resent all individuals who had suffered severe personal injuries and faced an increased risk of diseases including cancer ; and whose sources of potable water and properties had been contaminated as well as whose very existence as a people jeopardized.1306 This environmental tort action was legally based on common law theories of negligence, public and private nuisance, strict liability, medical monitoring, trespass and civil conspiracy. The complaint included 15 Kichwa, 24 Secoya and 37 assorted villagers. Other indigenous groups such as the Huaorani, Cof‚n and Siona were not named as plaintiffs; however, members of these groups could have been included in the action since the proposed class was geographically defined.1307 As researcher Judith Kimerling noted, the complaint was neither limited to the claims and injuries suffered by indigenous peoples nor based on any special rights of them. Nevertheless, press releases gave the impression that all plaintiffs were indigenous.1308 In addition to this action, the plaintiffs introduced a claim under the Alien Tort Victims Act, 28 USC. § 1350, on the grounds of violations of the law of nations.1309 In response to the lawsuit, Texaco filed motions for dismissal on the grounds of forum of non conveniens and international comity.1310 Texaco alleged that it held a minority interest (37.5 %) in the Consortium until 1992 while Petroecuador held the majority share (62.5 %).1311 According to Texaco, Ecuador’s government, as regulator and majority owner of the concession, approved and monitored all operations including those related to environmental matters. As a result, TexPet was not responsible of those operations on which plaintiffs founded their allegations.1312 With respect to the Texaco’s forum non conveniens

1306 1307

1308 1309 1310

1311 1312

Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 475 – 76 Plaintiffs’ Complaint, Aguinda vs Texaco Inc, No 93 Civ 7527 (S.D.N.Y. 1993), Pars. 8 and 29 Plaintiffs’ Complaint, Aguinda vs Texaco Inc, No 93 Civ 7527 (S.D.N.Y. 1993), Par. 29; Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 476 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 479 Plaintiffs’ Complaint, Aguinda vs Texaco Inc, No 93 Civ 7527 (S.D.N.Y. 1993), Par. 9 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 484 citing Defendant Texaco Inc.’s Motions To Dismiss, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1993); Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 1, 7 Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on

312

The Link Between Human Rights and the Environment

argument, this legal motion provides a US district court with broad discretion to decline jurisdiction on forum non conveniens grounds where dismissal would ‘best serve the convenience of the parties and the ends of justice.’1313 Accordingly, Texaco asserted that Ecuador’s judicial system provided a fair and adequate alternative forum for plaintiffs.1314 In other words, in its dismissal motion, Texaco recognized that Ecuador provided ‘all plaintiffs with causes of action and remedies for their alleged injuries’. Moreover, Texaco pointed out that Ecuador’s Constitution guaranteed due process and equal protection and its courts provide important substantive and procedural rights.1315 On the basis of this recognition, Texaco explicitly accepted civil jurisdiction of a court of competent jurisdiction in Ecuador and exhorted plaintiffs to seek ‘relief in Ecuador for personal injuries and property damage from Consortium activities.’1316 An alternative legal basis for dismissal, in the event that a district court fails to dismiss the case on forum non conveniens grounds, is the international comity principle.1317 In accordance with former US court rulings: ‘Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law but one of practice, convenience and expediency. Although more than mere courtesy and accommodation, comity does not achieve the force of an imperative or obligation. Rather, it is a nation’s expression of understanding which demonstrates due regard both to international duty and convenience and to the rights of persons protected by its own laws.’1318

1313 1314 1315 1316 1317 1318

Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 8 – 9; Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 484 – 485 Murray vs British Broad Corp, 81 F.3d 287 (2d Cir 1996) 291; Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 22 Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 1, 18 Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 19 Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 16, 20, 25 Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 2, 59 Somportex Limited vs Philadelphia Chewing Gum Corporation, Appellant, vs Brewster, Leeds & Co, Inc and M. S. International, Inc, Third-Party Defendants, 453 F.2d 435 (3rd Cir. 1972), Par. 14; Pravin Banker Assocs vs Banco Popular Del Peru, 109 F.3d 850 (2d Cir 1997), Par. 17

Corporate Responsibility and Accountability for Transnational Corporations

313

Based on this doctrine, Texaco also founded its motion to dismiss the case. According to Texaco, the plaintiffs’ complaint involved Ecuadorian laws and policies governing its lands, resources, environment, indigenous peoples and national oil company. Since comity allows ‘judicial restraint in cases having strong foreign elements or relating to “matters concerning actions of the foreign state taken within or with respect to its own territory”’, Texaco requested the Court to defer the case to an Ecuadorian court ‘where all appropriate parties can be heard and these issues adjudicated under Ecuadorian laws.’1319 For its part, the Ecuadorian government endorsed at the beginning of the process Texaco’s motions to dismiss the lawsuit. Indeed, the government of President Sixto Dur‚n Ball¦n filed both a diplomatic note of protest and later a amicus curiae brief, pointing out that the exercise of the jurisdiction over the case by a US court would lead to a breach of principles of international law and ‘become a serious disincentive for US companies that have invested in Ecuador’, thereby jeopardizing the nation’s economy.1320 Extrajudicial Negotiations As response to Aguinda’s case, Texaco initiated outside of Court negotiations with Ecuador’s government related to environmental and socio-economic issues raised by the lawsuit. Between 1994 and 1995, Texaco, the Ecuadorian government and Petroecuador signed two agreements, viz. a ‘Memorando de Entendimiento entre el Estado Ecuatoriano, Petroecuador y Texaco Oil Company’1321 and ‘Alcance del Trabajo de Reparaciûn Ambiental’1322. Both of them were later replaced by the so-called ‘Remediation Agreement’.1323 Under this agreement, TexPet committed itself to carry out environmental remedial work. 1319 Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 2, 59 1320 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 487 – 488 citing Embassy of Ecuador, Diplomatic Protest from Embassy of Ecuador to US Dept. of State, No. 4 – 2 – 138/93 (signed by Ambassador Edgar Ter‚n) (1993) (unofficial translation in Appendix to Texaco Inc.’s Motions to Dismiss, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1993)); and, Brief Amicus Curiae of the Republic of Ecuador, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1994) 4 1321 This agreement, translated in English as ‘Memorandum of Understanding between the Government of Ecuador, PetroEcuador and Texaco Petroleum Company (TexPet), was signed in December 1994. 1322 This agreement was signed in March 1995 and translated as ‘Scope of the Environmental Remedial Work’ 1323 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 493

314

The Link Between Human Rights and the Environment

To implement this, Texaco hired Woodward Clyde, an American engineering and consulting firm and Smith Environmental Technologies. Both of them drew up a Remedial Action Plan (RAP) to complement the scope of those activities set up in the Remediation Contract.1324 The remedial work was conducted by both subcontractors between 1995 and 1998. According to Texaco, the 40 million US Dollars environmental remediation program corresponded to ‘Texaco’s approximate 1/3 share of the oil-producing consortium with Petroecuador in which producing wells and pits formerly utilized by Texaco Oil were closed, produced water systems were modified, cleared lands were replanted and contaminated soil remediated. All remediation activities were inspected and certified by the Ecuadorian government.’1325 Texaco asserted that under this program, 161 pits, seven spill areas and 18 wells were closed; soil at 36 sites was remediated; three water reinjection systems were installed; three secondary spill containment dikes at storage facilities were designed; and extensive replanting and reforestation were performed, not to mention remediation from hundreds of well sites and waste pits omitted from the scope of the work.1326 Second, Texaco made payments for socio-economic compensation projects.1327 For example, Texaco planned to assign resources ‘for the construction of four educational centres and medical dispensaries to be administered by UNICEF’ or ‘for delivery of a small plane to the Catholic Capuchin Mission in Coca’.1328 Both institutions refused these offers since they were not consulted during the negotiations between TexPet and Ecuador. Within the framework of socio-economic compensation, Texaco negotiated contributions to public projects to provide drinking water and sewage systems for the municipalities of Lago Agrio, Shushufindi, Joya de los Sachas and Francisco de Orellana.1329 This negotiation also lacked public participation. 1324 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 496 – 497 1325 Texaco, ‘Remediation’ accessed 13 Mai 2013 1326 Texaco, ‘Texaco Petroleum, Ecuador and the Lawsuit against Chevron’, 3 accessed 13 Mai 2013 1327 Texaco, ‘Texaco Petroleum, Ecuador and the Lawsuit against Chevron’, 3 accessed 13 Mai 2013; Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 493 1328 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 509 – 510 1329 Texaco, ‘Texaco Petroleum, Ecuador and the Lawsuit against Chevron’,3 accessed 13 Mai 2013; Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 511 citing ‘Remediation Contract’, Art. VII C Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 493 – 495 citing ‘Remediation Contract’, Art. V Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 495 – 496 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 512 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 494, 514

316

The Link Between Human Rights and the Environment

of the municipalities involved so that ‘plaintiffs have no right to make claims for supposed and denied damage to the environment, […]’.1334 On the basis of these arguments, Texaco concluded: ‘[…] all matters related to the environment in the 1973 Concession Area were covered by the final settlements intimately detailed above, such that for TEXPET, TEXACO INC. and their successors and predecessors, these are matters already resolved by the competent authorities. It is, therefore, a violation of all legal principles of any civilized society governed by laws, to attempt to once again debate an issue that was concluded to the satisfaction of the Government of Ecuador and that such be performed with the only purpose of obtaining remedies which TEXPET has already performed.’1335

Dismissal of the Aguinda Case in US Courts In November 1996, Texaco’s motion to dismiss the case was granted by Judge Rakoff. The Court found its decision on three grounds. First, the Court declined to exercise jurisdiction by virtue of the doctrine of comity of nations. The Court shared the decision of the US District Court for the Southern District of Texas in case of Sequihua vs Texaco. On the basis of this ruling, the Court dismissed the action on grounds of international comity since the challenged activity and the alleged harm had occurred entirely within Ecuador ; the plaintiffs were all residents of Ecuador while the defendants were not residents of Texas; enforcement in Ecuador of any judgement issued by this Court was questionable at best; the challenged conduct was regulated by the Republic of Ecuador and exercise of jurisdiction by this Court would interfere with Ecuador’s sovereign right to control its own environment and resources; and the Republic of Ecuador had expressed its strenuous objection to the exercise of jurisdiction by the Court.1336 The second ground was based on forum non conveniens of the parties and in the interest of justice. Similarly, the Court ratified the reasoning of the Court of Texas which asserted that the convenience of the parties and the Court and the interests of justice required that the case be tried in Ecuador.1337 The third was related to the failure to join indispensable parties under Rule 19 (b) of the Federal Rules of Civil Procedure.1338 The Court concluded that the participation of Ecuador and 1334 Answer to the Complaint filed by Maria Aguinda Salazar vs ChevronTexaco Corp (2003), I.9 1335 Answer to the Complaint filed by Maria Aguinda Salazar vs ChevronTexaco Corp (2003), II.B.2.9 1336 Sequihua vs Texaco Inc, 847 F Supp 61 (S.D. Tex. 1994); Aguinda vs Texaco Inc, 945 F Supp 625 (S.D.N.Y. 1996) 1337 Sequihua vs Texaco Inc, 847 F Supp 61 (S.D. Tex. 1994); Aguinda vs Texaco Inc, 945 F Supp 625 (S.D.N.Y. 1996) 1338 Rule 19 (b) of the Federal Rules of Civil Procedure provides: ‘If a person as described in subdivision (a) (1) – (2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or

Corporate Responsibility and Accountability for Transnational Corporations

317

Petroecuador in the litigation plays a primary role in affording equitable relief sought by the plaintiffs.1339 Finally, Judge Rakoff pointed out at the end of the ruling that plaintiffs had to ‘face the reality’ that the power of the US district courts is limited and ‘does not include a general writ to right the world’s wrongs’.1340 In the meantime, the political landscape of Ecuador changed as Abdal‚ Bucaram was elected President. The new government supported the request of the plaintiffs to the Court for reconsidering its decision to dismiss the action.1341 In an affidavit accompanying that motion, Ecuador’s Attorney General Leonidas Plaza Verduga concluded that the intervention did not under any concept damage the sovereignty of the Republic of Ecuador, instead it looked to protect the interests of the indigenous citizens of the Ecuadorian Amazon who had been seriously affected by the environmental contamination attributed to the defendant company.1342 In February 1997, Abdal‚ Bucaram was removed from office.1343 A cause of this political crisis, Judge Rakoff asked the new Ecuadorian government ‘if it still desired to intervene, to provide binding assurances that it “is expressly prepared to waive sovereign immunity and submit fully to the jurisdiction of this Court (including jurisdiction over counterclaims and crossclaims that may be filed against Ecuador in connection with this action).”’1344 The official response of the Office of the Attorney General of the Republic of Ecuador ratifies Ecuador’s participation in the lawsuit in supporting plaintiffs ‘in order to procure the necessary indemnisation to alleviate the environmental damage caused by Texaco’.1345 Moreover, the Attorney General’s office pointed

1339 1340

1341 1342 1343 1344 1345

should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.’ Aguinda vs Texaco Inc, 945 F Supp 625 (S.D.N.Y. 1996) Aguinda vs Texaco Inc, 945 F Supp 625 (S.D.N.Y. 1996); Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 514 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 515 Jota vs Texaco Inc, 157 F.3d 153, (2d Cir, 1998), Par. 23 Aznares Juan, ‘Ecuador vota la destituciûn de Bucaram’ El Pa†s (Madrid, 25 de May 1997) accessed 20 Mai 2013 Memorandum Order, Aguinda vs Texaco Inc, 93 Civ 7527 (S.D.N.Y. 1997) Memorandum Order, Aguinda vs Texaco Inc, 93 Civ 7527 (S.D.N.Y. 1997)

318

The Link Between Human Rights and the Environment

out that this lawsuit did not and had no reason to compromise the sovereignty of the Ecuadorian state since this case involved Ecuadorian citizens as actors exercising their personal rights. Nevertheless, the response also clarified that the Ecuadorian State would not ‘participate or assume any responsibility in any other trial […]’1346 In August 1997, Judge Rakoff denied Ecuador’s and Petroecuador’s motion to intervene in the case. In his view, Ecuador’s response to the Court on the one side failed to provide the requested assurance. In the other, a clear waiver of sovereignty immunity was not clearly, completely, unambiguously and unmistakably expressed in the letter in order to be effective.1347 In October 1998, the Court of Appeals for the Second Circuit vacated the dismissal of the judgements in the Aguinda and Jota1348 cases and remanded the proceedings for being inconsistent with its decision. The three-judge panel asserted that dismissal on the ground of forum non conveniens had been erroneous in the absence of a condition requiring Texaco to submit to jurisdiction in Ecuador. They also held that the District Court’s reasoning regarding the plaintiffs’ failure to join an indispensable party was not a ground to dismiss all plaintiffs’ claims but rather had sufficed only to support dismissing so much of the complaint as sought to enjoin activities currently under the Republic’s control.1349 The Second Circuit ordered the District Court to reconsider the issues in the light of Ecuador’s changed litigating position. With respect to Ecuador’s intervention motion, the appellate court agreed with Judge Rakoff ’s reasoning that Ecuador did not place limitations on its participation in the case and that intervention motion had been insufficient because it had not included a full waiver of sovereign immunity. Finally, the Second Circuit urged Ecuador to clarify its role in the litigation.1350 In response, Texaco accepted Ecuador’s jurisdiction to litigate the plaintiff ’s claims.1351 In September 1998, the government of newly elected President of Ecuador, Jamil Mahuad, signed the so-called ‘Acta Final’ (Final Act). By virtue thereof, the Republic of Ecuador certified completion of the works under a Settlement Agreement as well as ‘absolved, liberated and forever freed TEXPET, […], its employees, principals and subsidiaries of any claim or litigation by the Government of the Republic of Ecuador concerning the obligations acquired by TEXPET’ in the ‘Contrato para la Ejecuciûn de Trabajos de Reparaciûn Medi1346 1347 1348 1349 1350 1351

Memorandum Order, Aguinda vs Texaco Inc, 93 Civ 7527 (S.D.N.Y. 1997) Memorandum Order, Aguinda vs Texaco Inc, 93 Civ 7527 (S.D.N.Y. 1997) The Jota case is a related claim brought by Peruvian plaintiffs. Jota vs Texaco Inc, 157 F.3d 153, (2d Cir, 1998) Jota vs Texaco Inc, 157 F.3d 153, (2d Cir, 1998) Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 2, 5

Corporate Responsibility and Accountability for Transnational Corporations

319

oambiental’ (Contract for Implementation of Environment Repair Works).1352 Furthermore, in a letter to Judge Rakoff, the then Ambassador of Ecuador, Ivonne A-Baki, clarified Ecuador’s position regarding the questions posed by the Second Circuit. The letter asserted that the government of Ecuador regarded the Jota and Aguinda cases as litigation between private individuals and a foreign private corporation. On this basis, the Ambassador concluded that the intervention of the Republic of Ecuador, as confirmed by the Second Circuit, was neither necessary nor required to pursue the case.1353 In January 2000, Ecuador faced a new political crisis. The president Jamil Mahuad was overthrown and replaced by a military-civilian junta.1354 In the light of these events, Judge Rakoff consulted the Ecuador Country Report on Human Rights Practices for 1998.1355 This report, issued by the US Department of State, concluded that ‘[t]he most fundamental human rights abuse [in Ecuador] stems from shortcomings in [its] politicized, inefficient and corrupt legal and judicial system.’1356 On the basis of evidence set forth in the report, the Court decided to reopen the Aguinda record. In a Memorandum Order, the Court reasoned that it could not ‘ignore without further inquiry a statement from a department of the US government that so fully casts doubt on the independence and impartiality of the principal courts to which the defendant seeks to remit these cases.’1357 In this sense, Judge Rakoff called for the parties to complement the record with additional submissions that they might ‘wish to make regarding whether the courts of Ecuador and/or Peru might reasonably be expected to exercise a modicum of independence and impartiality if these cases were dismissed while awaiting refilling in one or both of those forums.’1358 This gave plaintiffs the opportunity to reopen this particular issue which had been previously abandoned by them. In May 2000, Judge Rakoff granted for a second time the motion of Texaco to 1352 Embassy of Ecuador, Letter from Ivonne A. Baki, Ambassador of Ecuador to the United States, to Honorable Jed S. Rakoff (1998); Texaco, ‘Timeline of Events’ accessed 26 Mai 2013 1353 Embassy of Ecuador, Letter from Ivonne A. Baki, Ambassador of Ecuador to the United States, to Honorable Jed S. Rakoff (1998) 1354 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, Chevron Texaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 525 1355 Memorandum Order, Aguinda vs Texaco Inc, No 93 Civ 7527, No 94 Civ 9266, 2000 US Dist. LEXIS 745, (S.D.N.Y. 2000) 1356 US Department of State, ‘Ecuador Country Report on Human Rights Practices for 1998’ (Bureau of Democracy, Human Rights and Labor, 1999) 1357 US Department of State, ‘Ecuador Country Report on Human Rights Practices for 1998’ (Bureau of Democracy, Human Rights and Labor, 1999) 1358 Memorandum Order, Aguinda vs Texaco Inc, No 93 Civ 7527, No 94 Civ 9266, 2000 US Dist. LEXIS 745, (S.D.N.Y. 2000)

320

The Link Between Human Rights and the Environment

dismiss the Aguinda and Jota cases on the ground of forum non conveniens. In the view of the judge, the cases have ‘everything to do with Ecuador and nothing to do with the United States.’1359 As previously explained, forum non conveniens is a common law doctrine which allows a US district court to decline jurisdiction over a case when it believes that another court is better positioned to decide on dismissal, in the interest of justice and for convenience of the parties.1360 To consider a motion to dismiss on grounds of forum non conveniens, a defendant must demonstrate to the court in a first stage that an adequate alternative forum exists. If an alternative forum exists, the defendant must demonstrate in a second stage that relevant factors of private and public interest weight ‘so heavily in favour of the foreign forum that they overcome the presumption of a plaintiff ’s choice of forum.’1361 With respect to the first requirement of an adequate alternative forum, it is satisfied ‘when the defendant is “amenable to process” in the other jurisdiction’.1362 Moreover, ‘[a]n agreement by the defendant to submit to the jurisdiction of the foreign forum can generally satisfy this requirement’.1363 In 1999, Texaco clearly agreed in its ‘Memorandum of Law in Support of Its Renewed Motions to Dismiss Based on Forum Non Conveniens and International Comity’ to accept jurisdiction in Ecuador to litigate plaintiffs’ claims.1364 In addition, the Court observed that plaintiffs did not prove allegations that Ecuadorian courts were subject to corruption and outside pressures. By contrast, the court concluded by virtue of the evidence presented by Texaco that Ecuadorian courts did not give preferential treatment to multinational companies.1365 Even though the State Department described Ecuador’s legal and judicial systems as ‘politicized, inefficient and corrupt’, the court pointed out that 1359 Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no. 1 1360 Murray vs British Broad Corp, 81 F.3d 287 (2d Cir 1996) 291; Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 22; Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 528 1361 Gabriel Dirienzo vs Philip Services Corporation, 232 F.3d 49 (2d Cir 2000) 56 – 57; Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no. 12; Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda vs Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664, 529 1362 Gulf Oil Corp vs Gilbert , 330 US 501 (US Supreme Court 1947) 506 – 507; Piper Aircraft Co vs Reyno, 454 US 235 (US Supreme Court 1981) 1363 Gabriel Dirienzo vs Philip Services Corporation, 232 F.3d 49 (2d Cir 2000) 57; Jota vs Texaco Inc, 157 F.3d 153, (2d Cir, 1998) 159 1364 Texaco Inc.’s Memorandum of Law in Support of Its Renewed Motions to Dismiss based on Forum Non Conveniens and International Comity, Aguinda vs Texaco Inc, No. 93 Civ. 7527 (S.D.N.Y. 1999) 2 1365 Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no. 8

Corporate Responsibility and Accountability for Transnational Corporations

321

several US courts had found Ecuador to be an adequate alternative forum for the determination of civil disputes involving US companies.1366 Moreover, the court noted that public scrutiny in Ecuador might prevent the litigation from being subject to corruption or undue influence.1367 On the basis of this reasoning, the court was convinced that Ecuador was in a position to ‘exercise with respect to the parties and claims [..] that modicum of independence and impartiality necessary to an adequate alternative forum.’1368 Having proved the existence of an adequate alternative forum, the court was then called to balance relevant factors of private and public interest to determine the most convenient forum. According to US case law, a foreign plaintiff ’s choice deserves ‘less deference’.1369 However, the Second Circuit also concluded that this lesser deference is not applicable ‘when a treaty with a foreign nation accords its nationals access to our courts equivalent to that provided to American citizens.’1370 Since Ecuador has such a treaty with the USA which guarantees access of US citizens to justice,1371 the court decided that plaintiffs’ choice of forum carried a strong presumption of validity that might only be overcome by a balance of relevant factors which support dismissal for an alternative forum.1372 With the purpose to weigh this balance, the court is compelled to take into account those private and public interest factors established in the case of Gilbert.1373 Private interest factors are related to access to sources of proof; availability of compulsory process for attendance of unwilling and the cost of attendance of willing witnesses; possibility of viewing the premises and other practical problems which facilitate the conduct of a trial.1374 In the view of the Court, these factors favour the choice of an Ecuadorian forum since an Ecuadorian court would be in a better position than a New York jury to evaluate the evidence regarding environmental damage in the rain forest of Eastern Ecuador. Moreover, a fair balance of the relevant private interests could only be reached, according to the court, when two relevant parties – the Government of Ecuador and Petroecuador – join in the suit. This only would be possible if the suit were brought before an Ecuadorian court.1375 1366 1367 1368 1369 1370 1371 1372 1373 1374 1375

Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no 10 (5) Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no 10 (6) Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no 10 (6) Piper Aircraft Co vs Reyno, 454 US 235 (US Supreme Court 1981) 256 Blanco vs Banco Indus. de Venezuela S.A., 997 F.2d 974 (2d Cir 1993) 981 Treaty of peace, friendship, navigation and commerce, between the United States of America and the republic of Ecuador (1839), Art. 13 Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no. 12 Gulf Oil Corp vs Gilbert , 330 US 501 (US Supreme Court 1947) 508 – 509 Gulf Oil Corp vs Gilbert , 330 US 501 (US Supreme Court 1947) 508; Brand and Jablonski, Forum Non Conveniens (2007) 104 Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no. 13

322

The Link Between Human Rights and the Environment

With respect to the Gilbert public interest factors, these are linked to ‘local interest in the controversy, court congestion, avoidance of unnecessary problems in application of foreign law and avoidance of imposing jury duty on residents of a jurisdiction having little relationship to the controversy.’1376 The court concluded that all these factors also overwhelmingly supported an Ecuadorian forum on the grounds that Ecuadorian local interest was very substantial. Furthermore, the evidence showed that the preference given by the Consortium to oil exploitation over environmental protection was a ‘conscious choice made by the Government of Ecuador in order to stimulate their economy’.1377 Consequently, this case did not have any relevance for the public interest of the USA. Finally, the court called attention to the fact that the well-known congestion of American dockets is greater than that of a less litigious society like Ecuador.1378 Even though the balance of public and private factors favoured a dismissal for an alternative forum, the court was compelled to re-weigh this balance in the light of the claim submitted by the plaintiffs under the Alien Tort Claims Act (ATCA).1379 The Alien Tort Claims Act, adopted in 1789, grants US District Courts jurisdiction to hear a tort claim brought by foreign citizens who allege violations of the law of nations or a treaty of the United States.1380 In the Aguinda and Jota cases, the court dismissed this argument for two reasons. First, plaintiffs sought to claim under ATCA that the Consortium’s oil extraction activities violated environmental norms of international customary law.1381 According to the court, this argument lacked any substantial precedential support. In the case of Amlon Metals Inc vs FMC Corp, the District Court for the Southern District of New York (SNYD) concluded that invocations of international environmental law such as the Stockholm Principals, did not constitute a violation of the law of nations under ATCA.1382 In one of few cases to find ATCA applicable, Filartiga vs PenaIrala, the Court clearly stated that ‘[i]t is only where the nations of the world have demonstrated that the wrong is of mutual and not merely several concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the statute.’1383 Subsequent decisions have reaffirmed the narrow view on the applicability of 1376 Gulf Oil Corp vs Gilbert , 330 US 501 (US Supreme Court 1947) 508 – 509; Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001) 1377 Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no. 16 1378 Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no. 17 1379 Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no. 17 1380 Alien Tort Claims Act, 28 U.S.C. § 1350 1381 Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no. 17 1382 Amlon Metals Inc vs FMC Corp, 775 F.Supp. 668, (S.D.N.Y.1991) 671 1383 Filartiga vs Pena-Irala, 630 F .2d 876 (2d Cir 1980) 88

Corporate Responsibility and Accountability for Transnational Corporations

323

ATCA in environmental cases. In the case of Zapata vs Qinn, the Fifth Circuit Court of Appeals even stressed that ATCA applied only to ‘shockingly egregious violations of universally recognized principles of international law’.1384 On the basis of this reasoning of US courts, international environmental law treaties and agreements such as the Rio Declaration or the Stockholm Declaration, do not constitute norms enjoying universal acceptance by the international community.1385 Moreover, according to US courts, these norms on the one hand refer only to a general sense of environmental responsibility of nations to ensure that activities in its jurisdiction do not cause damage to the environment beyond their borders. On the other hand, they are devoid of ‘articulable and discernable’ standards, regulations and proscriptions to identify practices that constitute violations of international environmental law.1386 In addition, the court urged federal courts to ‘exercise extreme caution when adjudicating environmental claims under international law to insure that environmental policies of the United States do not displace environmental policies of other governments.’1387 The argument to abstain from interfering in a sovereign’s environmental practices confirmed the view that decisions relating to the extraction of resources and the implementation of environmental regulation are exclusively a matter of national sovereignty unless the alleged environmental torts and abuses affect neighbouring countries.1388 With respect to the second reason, in the case of Aguinda the Court held the view that the United States did not have a special interest under ATCA to provide a forum for plaintiffs pursuing an international law action against a US entity since the actions in question occurred in Ecuador where courts are in the position to interpret violations of international law.1389 For all these reasons, the court granted the defendant’s motion to dismiss the cases in forum non conveniens. This judgement by Judge Rakoff was sent to the United States Court of Appeals. In August 2002, the court affirmed the judgement and dismissed the forum non conveniens.1390 In relation to the extraterritorial applicability of ATCA, it is worth in this context to address the decision of the United States Supreme Court in April 2013 regarding the Kiobel case. The case relates to a complaint filed by Nigerian nationals residing in the United States who alleged that Royal Dutch Petroleum 1384 Zapata vs Quinn, 707 F.2d 691 (2d Cir 1983) 692 1385 Amlon Metals Inc vs FMC Corp, 775 F.Supp. 668, (S.D.N.Y.1991) 671; Beanal vs FreeportMcMoran Inc, 197 F.3d 161 (5th Cir 1999) 166 – 167 1386 Amlon Metals Inc vs FMC Corp, 775 F.Supp. 668, (S.D.N.Y.1991) 671; Beanal vs FreeportMcMoran Inc, 197 F.3d 161 (5th Cir 1999) 166 – 167 1387 Beanal vs Freeport-McMoran Inc, 197 F.3d 161 (5th Cir 1999) 166 – 167 1388 Beanal vs Freeport-McMoran Inc, 197 F.3d 161 (5th Cir 1999) 166 – 167; Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001) 1389 Opinion and Order, Aguinda vs Texaco Inc, 142 F.Supp.2d 534 (S.D.N.Y. 2001), no. 19 1390 Aguinda vs Texaco Inc, 303 F.3d 470 (2d Cir 2002)

324

The Link Between Human Rights and the Environment

Company, Shell Transport and Trading Company and Shell Petroleum Development Company of Nigeria aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria.1391 In this case, the Court dealt with the question of whether and under what circumstances U.S. courts may recognize a cause of action under the Alien Tort Statute, for violations of the law of nations that took place within the territory of a sovereign state other than the US. In answering this question, the Supreme Court analysed this case on the basis of presumed extraterritorial application, a canon of statutory interpretation which provides that ‘[w]hen a statute gives no clear indication of extraterritorial application, it has none.’1392 The analysis by the Supreme Court resulted in three main findings. First, the Court determined that nothing in the text of the ATCA suggested that ‘the Congress intended causes of action recognized under it to have a territorial reach’. Accordingly, even though the Act covers actions by aliens for violation of the law of nations, it does not necessarily imply extraterritorial reach.1393 Second, the Court established that the historical background against which the ATCAwas enacted did not rebut the presumption against application in the territory of another state.1394 To support this argument, the Supreme recalled its reasoning in Sosa case. The Court explained in this case that when the Congress passed the ATCA, ‘three principal offences against the law of nations’1395 had been identified: violation of safe conduct, infringement of the rights of ambassadors and piracy.1396 Third, the Court came to the conclusion that there was no indication that the intention of ATCA was meant to ‘make the United States a uniquely hospitable forum for the enforcement of international laws.’ The Supreme Court based its reluctance to accept the extraterritorial application of ATCA on the serious foreign policy consequences that such recognition could entail.1397 On the basis of all these considerations, the Court concluded that there is no clear indication of extraterritoriality in ATCA. Consequently, the presumption against extraterritorially applied to claims under this Act.1398 Furthermore, the Supreme Court clearly pointed out that even where the claims involved the territory of the United States, they had to have sufficient force to displace the presumption against extraterritorial application. In relation of corporate liability, this means 1391 Kiobel et al vs Royal Dutch Petroleum Co et al, 133 S.Ct. 1659 (US Supreme Court 2013) 1 1392 Morrison et al vs National Australia Bank Ltd et al, 561 U.S. 247 (US Supreme Court 2010) 6 1393 Kiobel et al vs Royal Dutch Petroleum Co et al, 133 S.Ct. 1659 (US Supreme Court 2013) 7 1394 Kiobel et al vs Royal Dutch Petroleum Co et al, 133 S.Ct. 1659 (US Supreme Court 2013) 8 1395 Sosa vs Alvarez-Machain et al, 542 U.S. 692 (US Supreme Court 2004) 29 1396 Sosa vs Alvarez-Machain et al, 542 U.S. 692 (US Supreme Court 2004) 30; Kiobel et al vs Royal Dutch Petroleum Co et al, 133 S.Ct. 1659 (US Supreme Court 2013) 8 1397 Kiobel et al v Royal Dutch Petroleum Co et al, 133 S.Ct. 1659 (US Supreme Court 2013) 13 1398 Kiobel et al v Royal Dutch Petroleum Co et al, 133 S.Ct. 1659 (US Supreme Court 2013) 13

Corporate Responsibility and Accountability for Transnational Corporations

325

that acts committed by corporations in a foreign state might be tried under the ATCA when such acts have a strong link with the territory of the United States. Accordingly, a mere corporate presence in a foreign country does not suffice.1399 The Aguinda Case Before Ecuadorian Courts After nine years of proceedings in US courts, forty-six of the Aguinda plaintiffs filed suit against Chevron Texaco and TexPet in the Superior Court of Justice of Nueva Loja in Lago Agrio, Ecuador.1400 This judicial process was characterized by accusations and counteraccusations of corruption between the parties. For instance, Chevron questioned the impartiality of the trial and the independence of the judiciary since the President of Ecuador, Rafael Correa, offered government support to gather proof and to assist the population directly affected by Texaco-produced contamination.1401 Moreover, Chevron produced evidence to undermine the authority of the court and to tarnish the reputation of the Ecuadorian judiciary. In 2009, Chevron published in Internet video recording taken by a hidden camera which showed judge NuÇez discussing the case with businessmen interested in obtaining contracts regarding environmental remediation. During the conversation, judge NuÇez seemed to suggest that he will rule against Texaco. Under Ecuadorian law, a judge is prohibited from meeting with one party without giving notice to the other and from delivering an opinion on a pending case. Faced with these events, Ecuador’s National Judiciary Council removed judge NuÇez from office. Finally, in February 2011, presiding judge Nicol‚s Zambrano sentenced Chevron Texaco and TexPet to pay 9,021,552 US Dollars later raised to 19,021,552 US Dollars because Chevron did not apologize publicly for its actions.1402 In order to enforce this ruling, the Ecuadorian judge ordered that the effects of this sentence would be to extended to Chevron’s subsidiaries worldwide on the grounds of the theory of ‘piercing the corporate veil’1403.1404 In response, Chevron took actions against the enforcement of the judgement in Ecuador as well as in the United States. 1399 Kiobel et al v Royal Dutch Petroleum Co et al, 133 S.Ct. 1659 (US Supreme Court 2013) 13 1400 Patel Suraj, ‘Delayed Justice: A Case of Study of Texaco and the Republic of Ecuador’s Operations, Harms and Possible Redress in the Ecuadorian Amazon’ (2012) 24 accessed 15 April 2013 1401 Chevron, ‘Chevron Statement Responding to the Government of Ecuador’s Offer to Mediate in Ongoing Trial’ (http://investor.chevron.com/phoenix.zhtml?c=130102& p=irolnewsArticle_Print& ID=1187833& highlight=) accessed 31 May 2013 1402 Maria Aguinda y Otros vs Chevron Corporation, Case No.2003 – 0002, (Corte Provincial de Justicia Sucumbios, 2011) 185 – 186 1403 Under corporate law, owners of a corporation or LLC have a limited liability for debts of a business. In some cases, courts have the discretion to lift the corporate veil, thereby making owners liable for a company’s debts and even for judgments arising from a lawsuit. This occurs, after an exhaustive analysis carried out by the court, in cases where one owner

326

The Link Between Human Rights and the Environment

In Ecuador, Chevron filed in March 2012 an appeal to squash the ruling of the Provincial Court of Sucumb†os before the National Court of Justice. Under Ecuadorian law, this recourse enables judges to review the trial proceeding at the request of the appellant; nevertheless, it does not uphold the enforcement of a ruling rendered by the court in Sucumb†os.1405 In November 2013, Ecuador’s National Court of Justice quashed part of the decision and ordered Chevron Texaco and TexPet to pay 9,510,787 US Dollars, thereby eliminating the payment for punitive damages of 10,000,000 US Dollars since the imposition of such damages are not regulated by Ecuadorian law.1406 Chevron’s Civil Racketeering Suit before US Courts Parallel to the appeal before the Ecuador’s National Court of Justice, Chevron sought in the United States to reinstate the injunction against the enforcement of the Ecuadorian ruling by filing a civil racketeering suit against the plaintiffs’ legal team led by American lawyer Steven Donzinger.1407 Chevron alleged that Donziger and other ‘co-conspirators’ engaged ‘in a criminal enterprise to obtain a settlement from or judgement against Chevron through unlawful means including fraud and extortion.’1408 Furthermore, in March 2011 the US District Judge of the Southern District of New York, Lewis Kaplan, granted a preliminary injunction which prevented plaintiffs and their lawyers from enforcing the Lago Agrio ruling outside the Republic of Ecuador.1409 This decision of Judge Kaplan

1404 1405 1406 1407 1408 1409

or a small group of them exercise control over the management and operations of the company and one or more of the following factors, additionally, concur : misuse of corporate funds, undercapitalization, failure to observe corporate formalities and fraud. In some Latin American jurisdictions, this doctrine has even been included in the legal framework (Brazil, Art. 117 of Law 6.040; Colombia, Art. 61 of Law 1116; Argentina, Art. 54 of Law 19.550). Moreover, tax, labor and environmental regulation constitute in such legislations additional factors to disregard the legal personality of such companies in Reyes, A New Policy Agenda for Latin American Company Law (2011) 21, 31 – 32; ValmaÇa Cabanes Antonio, ‘La doctrina jurisprudencial del levantamiento del velo societario’, (2012) El Derecho accessed 08 June 2013; Digital Media Law Project, ‘Piercing the Corporate Veil’ accessed 08 June 2013 Maria Aguinda y Otros vs Chevron Corporation, Case No.2003 – 0002, (Corte Provincial de Justicia Sucumbios, 2011) 13 – 14, 18 – 19, 23, 25 – 26 Ley de casaciûn Art. 2 and Art. 3; ‘Corte admite recurso de casaciûn de Chevron’, El Tiempo (11 November 2012) Maria Aguinda y Otros vs Chevron Corporation, Case No.174 – 2012, (Corte Nacional de Justicia, 2013), 222 Barret Paul, ‘Chevron Fails to Squelch $19 Billion Ecuador Verdict’, Bloomberg Businessweek (9 October 2012); ‘Supreme Court won’t consider blocking $18 bn judgment against Chevron’ CNN (24 October 2012) Opinion, Chevron Corp vs Donziger, 11 Civ 0691 (LAK) (S.D.N.Y. 2011) 67 Opinion, Chevron Corp vs Donziger, 11 Civ 0691 (LAK) (S.D.N.Y. 2011) 125

Corporate Responsibility and Accountability for Transnational Corporations

327

constituted a victory for Chevron since the company has no assets in Ecuador. Nevertheless, in January 2012 the US Second Circuit Court of Appeals overturned judge Kaplan’s decision on the grounds that Chevron prematurely presented its defences to the recognition and enforcement of the Ecuadorian judgement in New York. The Court recommended Chevron to wait until the moment when the Lago Agrio plaintiffs seek to enforce their judgement in New York. In addition, the Second Circuit Court clearly pointed out that New York courts did not constitute a ‘transnational arbiter to dictate to the entire world which judgements are entitled to be respected and which countries’ courts are to be treated as international pariahs.’ As a result, by virtue of the principle of international comity, US courts must refrain from restraining ‘efforts to enforce those foreign judgements, or to preempt the courts of other countries from making their own decisions about the enforceability of such judgements.’1410 Chevron appealed the decision of the Second Circuit Court before the US Court Supreme. Power business groups such as the National Association of Manufacturers, the US Chamber of Commerce and Halliburton, the large oil-field services company, filed amicus briefs with the Supreme Court in support of Chevron’s appeals. According to these briefs, the US judiciary has the authority to protect American companies against fraudulent judgements handed down by foreign courts.1411 For example, the National Association of Manufacturers concluded in its brief that the district court’s injunction blocking the enforcement of the Ecuadorian judgement ‘pre-served the ability of US courts to ensure that the international legal system is not tainted and burdened by alleged fraud originating in the United States.’1412 Despite of this backing, in October 2012 the US Court Supreme turned down Chevron’s appeal without explaining the reasons for its decision.1413 This last ruling constituted a setback for Chevron’s efforts to avoid liability for environmental damage in Ecuador. Efforts of Lago Agrio Plaintiffs to Enforce Ecuadorian Judgements before Foreign Courts As Chevron has neither bank accounts nor assets in Ecuador, plaintiffs concentrated their efforts on filing actions in Argentina, Brazil and Canada to seize Chevron subsidiaries’ assets in those countries. In May 2012, Ecuadorian 1410 Chevron Corp vs Naranjo, 667 F.3d 232 (2d Cir. 2012) 7, 10 1411 Barret Paul, ‘Chevron Fails to Squelch $19 Billion Ecuador Verdict’, Bloomberg Businessweek (9 October 2012); Brief Amicus Curiae of Halliburton, Chevron Corp vs Naranjo, No. 11 – 14289 (U.S Supreme Court 2012) 1412 Brief Amicus Curiae of The National Association of Manufacturers, Chevron Corp vs Naranjo, No. 11 – 1428 (U.S Supreme Court 2012) 1413 Chevron Corp vs Naranjo, No. 11 – 1428 (U.S Supreme Court 2012)

328

The Link Between Human Rights and the Environment

plaintiffs initiated an action before the Ontario Supreme Court of Justice seeking to enforce the Ecuadorian judgement against Chevron. In May 2013, Judge David Brown dismissed the action by concluding that Canadian Courts have no jurisdiction to enforce this particular ruling. The judge observed that evidence had disclosed that there was no reference point for dealing with this case in Ontario since Chevron which was a party to the Ecuadorian judgement, had neither a presence nor assets in Canada. The judge pointed out that while it is true that the corporation named Chevron Canada operates since 1966 in this country, its operations are funded without financial contribution from Chevron Corporation or any other entity associated with Chevron. Moreover, its shares were not held by Chevron.1414 Given the absence of exigible assets of Chevron in Ontario’s jurisdiction, Judge Brown concluded that any recognition of the Ecuadorian judgement by the Ontario court would have no practical effect.1415 Accordingly, Ontario courts, in his view, should refrain from dedicating ‘their resources to disputes where, in dollar and cents terms, there is nothing to fight over.’1416 Moreover, he recommended the parties to seek the enforcement of the judgement in some other jurisdiction where any ultimate recognition of it would have a practical effect.1417 Within the framework of the Organization of American States (OAS), the members of this organization adopted in 1979 the Inter-American Convention on Execution of Preventive Measures.1418 The purpose of this Convention is to empower judges or courts of the States Parties to execute the preventive measures decreed by a judge or court of another State Party competent in the international sphere.1419 In the light of this Convention, an Argentine judge of first instance in civil matters granted in November 2012 preventive measures requested by Ecuadorian plaintiffs by virtue of the ruling from the Court in Lago Agrio.1420 As a result, Chevron’s assets in Argentina were frozen. Chevron appealed against this decision. In January 2013, the Argentinean Court of Appeals upheld the ruling of the lower judge. 1414 Yaiguaje vs Chevron Corporation, 2013 ONSC 2527 (Ontario Supreme Court of Justice 2013) Pars. 83, 89, 92, 93, 100 1415 Yaiguaje vs Chevron Corporation, 2013 ONSC 2527 (Ontario Supreme Court of Justice 2013) para110 1416 Yaiguaje vs Chevron Corporation, 2013 ONSC 2527 (Ontario Supreme Court of Justice 2013) Par. 111 1417 Yaiguaje vs Chevron Corporation, 2013 ONSC 2527 (Ontario Supreme Court of Justice 2013) Pars. 84, 111 1418 The Inter-American Convention on Execution of Preventive Measures entered in force in 1980. The Convention has heretofore been ratified by the following countries: Argentina, Colombia, Ecuador, Guatemala, Paraguay, Peru and Uruguay. 1419 Inter-American Convention on Execution of Preventive Measures (1979), Art. 2 1420 Aguinda Salazar Maria vs Chevron Corporation, No. 91814/2012 (Juzgado Civil No. 61, 2012), Par. II

Corporate Responsibility and Accountability for Transnational Corporations

329

By virtue of the Convention, the judge of the State of execution may refuse the enforcement of a letter rogatory concerning preventive measures, among other things, when the party affected justifies the absolute lack of grounds for the measure (Art. 4) or when preventive measures are manifestly contrary to its public policy (Art. 12). In the given case, the court of appeal agreed with the judge of first instance that Chevron failed to prove that restrictions adopted by the foreign judge violated the admissibility criteria set out in Argentine legislation.1421 With respect to the public policy (ordre public), the Inter-American Convention on General Rules of Private International Law defines ordre public as the threshold for the application of foreign law and for support from international legal cooperation. Ordre public is invoked to safeguard the core principles of the legislation of the State of destination in circumstances under which those principles are concretely, seriously and manifestly infringed.1422 On this legal basis, the appellants argued that their right of defence was affected in the Lago Agrio process. In response to this allegation, the Argentinean court adverted that the company was able to present their arguments to the tribunal in Ecuador. A further argument of the appellants was that the corporate personality of Chevron Argentina differs from that of Chevron Corp.1423 In this regard, the Court pointed out that this issue was already analyzed by the Ecuadorian Court. Moreover, the Court stressed that the appellants did not demonstrate that the measures affected the assets of individuals who are not a party to the lawsuit. In effect, the Court had access to an official form named 10-K which was submitted by Chevron to the United States Securities and Exchange Commission for the fiscal year 2011. In this form, Chevron expressly mentioned that Chevron Argentina SRL including among others Chevron Canada, is a subsidiary ‘owned, either directly or indirectly, by Chevron Corporation’.1424 Based on this evidences, the Argentine Court of Appeals concluded that the interim measures granted by the Ecuadorian judge did not violate Argentine public policy. Following this unfavorable ruling, Chevron lodged an appeal before the Argentine Supreme Court. The Supreme Court referred again the principle of public policy as a reason for declining the execution of preventive measures in

1421 Aguinda Salazar Maria vs Chevron Corporation, No. 91814/2012 (Sala Civil I, 2013), Par. V 1422 Aguinda Salazar Maria vs Chevron Corporation, No. 91814/2012 (Sala Civil I, 2013), Par. V; Tellechea Bergman, ‘Dimensiûn judicial del caso privado internacional in XXXIV Curso de Derecho Internacional (2007) 1423 Aguinda Salazar Maria vs Chevron Corporation, No. 91814/2012 (Sala Civil I, 2013), Par. V 1424 Aguinda Salazar Maria vs Chevron Corporation, No. 91814/2012 (Sala Civil I, 2013), Par. V; Chevron, Form 10-K (31 December 2011) E-7 to E-8 accessed 07 June 2013

330

The Link Between Human Rights and the Environment

the State of destination.1425 According to the Court, the principle of due process, consecrated in Article 18 of the Argentine Constitution, includes the principle of public policy which must be taken into account not only in criminal procedures but also in procedures related to property rights. Moreover, the Court pointed out in a previous resolution that any legal proceedings conducted within the Argentine jurisdiction as well as proceedings which give rise to a judgement or resolution handled down by foreign judicial authority, must be subject to the principle of due process.1426 In the present case, an Ecuadorian judge issued interim measures towards the enforcement of a judgement which ordered Texaco to pay 19,021,552.00 US Dollars. For the purpose of ensuring the enforcement, the Ecuadorian judge extended the effects of the interim measures to subsidiaries of Chevron Corporation including Chevron Argentina SLR on the basis of the theory of ‘piercing the corporate veil’. Moreover, the Ecuadorian judge made clear that this particular point regarding the lifting of the corporate veil could not be subject to controversy since the decision was enforceable.1427 In the view of these facts, the Argentine Supreme Court asserted, as the Canadian Court previously argued, that Chevron Argentina SLR had not participated in the Ecuadorian lawsuit and that this corporation had a legal personality distinct from Chevron Corporation.1428 Moreover, the Argentine Supreme Court made clear that the decision to declare the non opposability of a company’s legal personality is of exceptional nature in the Argentine legislation.1429 Since the Ecuadorian decision has the force of res judicata, the court was the opinion that Chevron Argentina SRL was not required to assert their rights to legal personality before an Ecuadorian court, as Article 5 of the Inter-American Convention

1425 Art. 12 of the Inter-American Convention on Execution of Preventive Measures 1426 Riopar S.R.L. vs Transportes Fluviales Argenr†o S.A., No. R.165.XXXII (Corte Suprema de Justica de Argentina 1996), Par. 5; Aguinda Salazar Maria vs Chevron Corporation, Nos. A.253.XLIX A.238.XLIX (Corte Suprema de Justica de Argentina 2013), no. 4 1427 Maria Aguinda y Otros vs Chevron Corporation, Case No.2003 – 0002, (Corte Provincial de Justicia Sucumbios, 2011); Aguinda Salazar Maria vs Chevron Corporation, Nos. A.253.XLIX A.238.XLIX (Corte Suprema de Justica de Argentina 2013), no. 5 1428 Aguinda Salazar Maria vs Chevron Corporation, Nos. A.253.XLIX A.238.XLIX (Corte Suprema de Justica de Argentina 2013), no. 5 1429 Art. 54 de la Ley de Sociedades Argentina 19.550. The last paragraph of this provision establishes: “An act of the company that conceals the attainment of ends that are outside the corporate purpose or constitutes a mere recourse for breaching the law, public order, good faith, or that is intended to thwart the rights of third parties, must be attributed directly to the partners or the controlling shareholders responsible for those acts who will be jointly and severally liable for the damage caused”. Aguinda Salazar Maria vs Chevron Corporation, Nos. A.253.XLIX A.238.XLIX (Corte Suprema de Justica de Argentina 2013), no. 6

Corporate Responsibility and Accountability for Transnational Corporations

331

on Execution of Preventive Measures set forth.1430 On the basis of this argumentation, the Argentine Court revoked the ruling issued by the lower tribunals. In a dissenting opinion, the judge of the Argentine Supreme Court, Carlos Fayt, explained that according to the case law of the Supreme Court, judicial decisions on preventive measures did not constitute a final judgement for the effect of admitting an appeal in accordance with Argentine Law.1431 He pointed out that Argentina is compelled to implement international treaties in order not to incur international liability. Consequently, Argentine judges are obliged according to Article 2 (b) of the Inter-American Convention on Execution of Preventive Measures to execute preventive measures ordered by a judge or court of another State Party and seeking to guarantee the security of property.1432 In his explanatory statement, he observed that the interim measures ordered by the Court in Ecuador did not breach Argentine public policy inasmuch as the procedural provisions set forth that preventive measures will be ordered and enforced without hearing the other party.1433 On this ground, Chevron’s argument that its right of defence was affected in the process was undermined. Additionally, the judge Fayt made clear the difference between recognition and enforcement of preventive measures and those of judgements. According to Article 6 of the Inter-American Convention, the execution of preventive measures does not imply the recognition and execution of the foreign judgement. In consonance with this provision, the Argentine legislation set forth requirements to execute a foreign judgement. Among other requirements, the Civil and Commercial Procedure Code establishes that the judgement must not affect the principles of public order as well as that the respondents, against whom it is envisaged to enforce the judgement, must be personally summoned and their right to defence must be guaranteed.1434 This last requirement is explicitly not required in Argentine legislation to enforce preventive measures ordered by a

1430 Aguinda Salazar Maria vs Chevron Corporation, Nos. A.253.XLIX A.238.XLIX (Corte Suprema de Justica de Argentina 2013), no. 7 1431 Art. 14 de Ley 48; Dissenting Opinion, Aguinda Salazar Maria vs Chevron Corporation, Nos. A.253.XLIX A.238.XLIX (Corte Suprema de Justica de Argentina 2013) 1432 Art. 2 (b) of the Inter-American Convention on Execution of Preventive Measures; Dissenting Opinion, Aguinda Salazar Maria vs Chevron Corporation, Nos. A.253.XLIX A.238.XLIX (Corte Suprema de Justica de Argentina 2013), no. 7 1433 Art. 198 del Cûdigo Procesal Civil y Comercial, Dissenting Opinion, Aguinda Salazar Maria vs Chevron Corporation, Nos. A.253.XLIX A.238.XLIX (Corte Suprema de Justica de Argentina 2013), no. 8 1434 Art. 517 (2) and (4) del Cûdigo Procesal Civil y Comercial; Dissenting Opinion, Aguinda Salazar Maria vs Chevron Corporation, Nos. A.253.XLIX A.238.XLIX (Corte Suprema de Justica de Argentina 2013), no. 8

332

The Link Between Human Rights and the Environment

foreign judge.1435 In the light of this arguments, judge Fayt dismissed Chevron’s appeal. The decision of the Argentine Supreme came at a time when the state-owned oil company, YPF, negotiate with Chevron the development of the Vaca Muerta super-field, the second largest shale oil reservoir in the world. The decision of the Supreme Court in favour of Chevron lifted one of the main obstacles to close in July 2013 the final agreement between Chevron and YPF.1436 Arbitration between Chevron Corporation and Texaco Oil Company and the Republic of Ecuador before the Permanent Arbitration Court in The Hague With the aim of preventing the enforcement of the Ecuadorian judgement in foreign jurisdictions, Chevron Corporation and Texaco Oil Company instituted arbitration proceedings against the Republic of Ecuador before the Permanent Court of Arbitration (PCA) in The Hague under UNCITRAL Arbitration Rules pursuant Article VI (3) (a) of the Bilateral Investment Treaty between the United States of America and Ecuador.1437 In its arbitration claim, Chevron and TexPet argued that Ecuador had undermined and nullified its agreements, among other things, the ‘1995 Settlement Agreement’ and the 1998 Final Release. These agreements discharged TexPet of any responsibility derived from environmental impact on public land without prejudice to potential individualized claims for alleged personal injury or damage to private property.1438 In addition, the claimants asserted that Ecuador had refused to notify the Lago Agrio Court that TexPet and its affiliated companies had been released from environmental liability resulting from the former Consortium’s operations. Moreover, Ecuador had failed to protect the rights of TexPet and Chevron within the Lago Agrio litigation.1439 The claimants also pointed out that Ecuador’s organs had actively supported the Lago Agrio plaintiffs.1440 On the one hand, Ecuador’s executive branch, led since 2007 by the President Rafael Correa, had directly interfered in the Lago Agrio litigation as 1435 Dissenting Opinion, Aguinda Salazar Maria vs Chevron Corporation, Nos. A.253.XLIX A.238.XLIX (Corte Suprema de Justica de Argentina 2013), no. 8 1436 Fontevecchia Agustino, ‘Chevron’s Argentine Shale Dream: Supreme Court Decision Paves Way For YPF Deal To Develop Vaca Muerta’, Forbes (6 May 2013); Turner Taos, ‘Argentina’s Top Court Unfreezes Chevron Assets’, The Wall Street Journal (5 June 2013) 1437 Claimant’s Notice of Arbitration, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2009) 1 1438 Claimant’s Notice of Arbitration, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2009), Pars. 12 – 15, 67 1439 Claimant’s Notice of Arbitration, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2009), Par. 67 1440 Claimant’s Notice of Arbitration, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2009), Par. 67

Corporate Responsibility and Accountability for Transnational Corporations

333

President Correa publicly announced its support for the plaintiffs.1441 On the other hand, Ecuador’s judicial branch had, according to Chevron und TexPet, conducted the Lago Agrio litigation in total disregard of Ecuadoran law, international standards of fairness and Chevron’s basic due process and natural justice rights.1442 Moreover, the claimants explained that the Lago Agrio court had conducted highly irregular proceedings which appeared to be directed toward finding Chevron liable.1443 In the light of these arguments, the Tribunal ordered Ecuador to prevent the enforcement or recognition of the Lago Agrio judgement within or without Ecuador and warned that if the Ecuadorian judgement breached its obligation as a matter of international law, ‘any loss arising from the enforcement of such judgement (within and without Ecuador) may be losses for which the Respondent would be responsible to the Claimants under international law […]’.1444 In order to enforce this order, the arbitration tribunal issued several interim awards ordering the Republic of Ecuador to adopt all necessary measures to prevent the enforcement of the judgement.1445 Despite of these awards, Lago Agrio plaintiffs carried on their efforts to enforce the judgement outside Ecuador. In order to expeditiously address this case, the Tribunal divided the merits of the parties in two parts: Track I and Track II. In Track I the Court decided to analyse the preliminary issues arising from the 1995 Settlement Agreement.1446 In September 2013, the Tribunal issued a Partial Award concerning the legal interpretation and legal effect of the 1995 Settlement Agreement. First, the Tribunal addressed the question if Chevron was part of the 1995 Settlement Agreement. After hearing the rules for the interpretation of contracts in Ecuadorian legislation, the Tribunal decided that Chevron was part of this 1995 Settlement Agreement and could therefore enforce its contractual rights under 1441 Claimant’s Notice of Arbitration, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2009), Pars. 4, 37 – 42 1442 Claimant’s Notice of Arbitration, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2009), Par. 4 1443 Claimant’s Notice of Arbitration, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2009), Pars. 43, 52 – 54 1444 Procedural Order, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2011), Par. 3 1445 First Interim Award on Interim Measures, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2012), (V) (E) (6); Second Interim Award on Interim Measures, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2012), no 3 (i); Fourth Interim Award on Interim Measures, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), (IV) 1 1446 First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Pars. 4 – 5

334

The Link Between Human Rights and the Environment

this agreement. Second, the tribunal dealt with the scope of the release in Article 5 of the 1995 Settlement Agreement and Article IVof the 1998 Final Release made by the Republic of Ecuador to Chevron and TexPet. By virtue of the 1995 Settlement Agreement, TexPed was released from the Republic of Ecuador’s and PetroEcuador’s claims based on environmental impact. Moreover, the Agreement provided that TexPet would be released from all remaining environmental liability linked to the completion of the remediation obligation.1447 Article 5.1 and 5.2 of the 1995 Settlement Agreement provided (Article V):1448 ‘5.1 On the execution date of this Contract and in consideration of Texpet’s agreement to perform the Environmental Remedial Work in accordance with the Scope of Work set out in Annex A and the Remedial Action Plan, the Government and PetroEcuador must hereby release, acquit and forever dischargeTexpet, Texaco Petroleum Company, CompaÇia Texaco de Petrûleos del Ecuador,S.A., Texaco Inc. and all their respective agents, servants, employees, officers, directors, legal representatives, insurers, attorneys, indemnitors, guarantors, heirs, administrators, executors, beneficiaries, successors, predecessors, principals and subsidiaries (hereinafter referred to as ‘the Releasees’) of all the Government’s and PetroEcuador’s claims against the Releasees for Environmental Impact arising from the Operations of the Consortium, except for those related to the obligations contracted hereunder for the performance by Texpet of the Scope of Work (Annexes A), […]’ ‘5.2 The Government and PetroEcuador intend claims to mean any and all claims, rights to Claims, debts, liens, common or civil law or equitable causes of actions and penalties, whether sounding in contract or tort, constitutional, statutory, or regulatory causes of action and penalties (including but not limited to, causes of action under Article 19 – 2 of the Political Constitution of the Republic of Ecuador, Decree No. 1459 of 1971, Decree No. 925 of 1973, the Water Act, R.O. 233 of 1973, ORO No. 530 of 1974, Decree No. 374 of 1976, Decree No. 101 of 1982, or Decree No. 2144 of 1989, or any other applicable law or regulation of the Republic of Ecuador), costs, lawsuits, settlements and attorneys’ fees (past, present, future, known or unknown), that the Government or PetroEcuador have, or ever may have against each Releasee for or in any way related to contamination, that have or ever may arise in the future, directly or indirectly arising out of Operations of the Consortium including but not limited to consequences of all types of injury that the Government or PetroEcuador may allege concerning persons, properties, business, reputations and all other types of injuries that may be measured in money including but not limited to, trespass, nuisance, negligence, strict liability, breach of warranty, or any other theory or potential theory of recovery.’

1447 First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Par. 20 1448 First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Pars. 22 – 23

Corporate Responsibility and Accountability for Transnational Corporations

335

In addition, Article IV of the 1998 Final Release which certified that TexPet performed all its obligations under the 1995 Settlement Agreement and released TexPet from and liability deriving from the Consortium’s operations, stated:1449 ‘[…] The Government and PetroEcuador proceed to release, absolve and discharge TexPet, Texas Petroleum Company, CompaÇia Texaco de Petrûleos del Ecuador, S.A., Texaco Inc. and all their respective agents, servants, employees, officers, directors, legal representatives, insurers, attorneys, indemnitors, guarantors, heirs, administrators, executors, beneficiaries, successors, predecessors, principals and 15 subsidiaries forever, from any liability and claims by the Government of the Republic of Ecuador, PetroEcuador and its Affiliates, for items related to the obligations assumed by TexPet in the aforementioned Contract [the 1995 Settlement Agreement] […]’

On the basis of this provisions, the Tribunal was of the view that the principal aim of TexPet in the 1995 Settlement Agreement and the 1998 Final Release was ‘to address “forever” all possible environmental claims by the Respondent and PetroEcuador on the one side against TexPet on the other side which arisen or could conceivably arise from the Consortium’s operations under the 1973 Concession Agreement in the Oriente region of Ecuador, […].’1450 The release for environmental claims referred in Article 5.1 and 5.2 of the 1995 Settlement Agreement and Article IV or the Final Release was only applicable to claims made by the Republic of Ecuador in its own rights. Accordingly, such provisions were inapplicable to a non-contractual claims made by a third party in its own rights.1451 In fact, under Ecuadorian law, the Republic of Ecuador had no right to dispose of individual claim of third party. However, the Tribunal pointed out that this issue should not to be confused with the capacity of the Republic of Ecuador in relation to ‘diffuse’ or ‘collective rights’ at the time of the 1995 Settlement Agreement.1452 By virtue of Article 19 (2) of the Ecuadorian Constitution of 1979, expressly cited in Article 5.2 of the 1995 Settlement Agreement, the Ecuadorian State had the obligation to ensure to each person, among other things, ‘[…] the right to live in an environment that is free from contamination. It is the duty of the State to ensure that this right is not negatively affected and to foster the preservation of nature […]’.1453 Under Ecuadorian law as at the time when the 1995 was executed, 1449 First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Pars. 32 – 33 1450 First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Par. 77 1451 First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Pars. 79, 81 1452 First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Par. 96 1453 Article 19 (2) of the 1979 Ecuadorian Constitution: ‘Sin perjuicio de otros derechos necesarios Par. el pleno desenvolvimiento moral y material que se deriva de la naturaleza

336

The Link Between Human Rights and the Environment

this diffuse right could exclusively be vindicated by the Ecuadorian State.1454 As a result, no person could bring a claim under Article 19 (2) of the Ecuadorian Constitution to safeguard the right of citizens to live in a healthy environment without claiming to have suffered any personal harm.1455 On the basis of this reasons, the Tribunal concluded that under Ecuadorian Law, Article 5 of the 1995 Settlement Agreement and Article IVof the Final Release precluded any claim of the Republic of Ecuador as well as of a third person making a claim against Chevron or TexPet invoking the diffuse constitutional right embodied in Article 19 (2) of the Constitution.1456 Nevertheless, individuals are in the capacity to make an environmental claim for personal harm in respect of their individual rights. Regardless of the responsibility of TexPet for environmental impact in Ecuador, the negligent actions of Petroecuador, the state-owned company, have also resulted in severe environmental damage. Indeed, Petroecuador’s own data showed that its operations had caused 801 spills between 1990 and 2004 and a total spill volume of 1.9 million gallons.1457 The environmental situation in the Amazon rainforest has worsened in the last years. The lack of expertise of Petroecuador’s in monitoring the Trans-Ecuadorian pipeline (SOTE) and in early detecting spills has given rise to environmental catastrophes. In May 2013, a landslide damaged the Trans-Ecuadorian pipeline (SOTE) and caused a spill of 420,000 gallons of oil. An estimated 11,480 barrels of oil leaked in the Coca River, a tributary of the Amazon. This catastrophe has affected rivers in Brazil, Colombia, Peru, thereby giving rise to Ecuador’s international reasonability for cleaning up the spills.1458

1454 1455 1456 1457

1458

de la persona, el Estado le garantiza: […] 2. El derecho de vivir en un medio ambiente libre de contaminaciûn. Es deber del Estado velar Par. que este derecho no sea afectado y tutelar la preservaciûn de la naturaleza. La ley establecer‚ las restricciones al ejercicio de determinados derechos o libertades Par. proteger el medio ambiente; […]’ First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Pars. 102, 106 First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Pars. 100 – 101, 106 First Partial Award on Track I, Chevron Corporation and Texaco Petroleum Company vs The Republic of Ecuador, No. 2009 – 23 (PCA 2013), Par. 108 Chevron’s Petition to Dismiss, Maria Aguinda y Otros vs Chevron Corporation, Case No.2003 – 0002, (Corte Provincial de Justicia Sucumbios, 2007) ; Texaco, ‘Plaintiffs’ Myths, Distortions and Fabrications’ accessed 17 June 2013 ‘Brazil ‘on alert’ over an oil spill from Ecuador’, BBC News (10 June 2013); ‘Ecuador recoge el agua de los r†os en Brasil, Colombia y Perffl tras derrame petrolero’, El Comercio (16 June 2013)

Corporate Responsibility and Accountability for Transnational Corporations

337

Conclusion At the beginning of TexPet’s operation in the 1970s, Ecuador lacked of experience in the oil sector and of an environmental legislation. Therefore, Ecuador trusted the know-how and technology of the company. On this basis, TexPet had a wide margin of maneuver for setting its own environmental standards and policies. Unfortunately, TexPet and PetroEcuador operations caused serious environmental damage in Amazon rainforest. This evidences that the lack of legislation ruling the extraction sector leads to environmental damage and the violation of human rights. In addition, civil society, particularly those affected in the extraction project, was excluded from the access to information and participation in the process and negotiation related to the audit, remediation and compensation plan. This demonstrates the necessity of implementing procedural rights in all stages of development projects since they constitute core safeguards which ensure transparency in decision-making process as well as they enable social control and monitoring. The case of Aguinda and others vs Texaco and Chevron also illustrates the difficulty of the realization of the right of access to justice and the due process when national and international stakeholders come into play. In the lawsuit of Aguinda vs Texaco before US Courts, plaintiffs sought to represent through a class action lawsuit all individuals who had suffered severe personal injuries and faced up an increased risk of suffering diseases due to TexPet operations. In the arguments requesting dismiss of this action, Texaco expressed its confidence in Ecuador’s judicial system and explicitly accepted civil jurisdiction of Ecuadorian courts. By contrast, plaintiffs maintained their assertion that the Ecuadorian courts were subject of corruption and outside pressures. In May 2000, Judge Rakoff granted for a second time the motion of Texaco to dismiss the cases Aguinda and Jota on the ground of forum non conveniens. After nine years of proceedings in US courts, Aguinda plaintiffs filed a suit against Chevron Texaco and TexPet before the Superior Court of Justice of Nueva Loja in Lago. As a result of this proceeding, the Court of Lago Agrio condemned TexPet-Chevron to pay approximately 19,000,000,oo US Dollars for environmental damage. This decision was appalled by Texaco before the Supreme Court of Ecuador. The Court ratified the decision of the lower instance; however, it reduced the payment to 9,000,000,oo US Dollar. Facing this scenario, TexPet and Chevron settled a request of arbitration with the Permanent Court of Arbitration (PCA) in The Hague. Twenty years have elapsed since the first claim was filed by Lago Agrio plaintiffs before US Courts. Given this fact, the right of Lago Agrio plaintiffs to access to justice and due process has been violated because of this long period in which they have waited to obtain redress. The impossibility of make transnational corporations liable for environmental damage and human rights violations due to weak institution and the lack

338

The Link Between Human Rights and the Environment

of mechanisms to redress in developing countries as well as the alternative forums that TNCs have to uphold their rights, expose people to a vulnerable situation. In the case of Chevron, the access of TexPet and Chevron to arbitration tribunals places these companies in a better position to claim for their rights to the detriment of the rights of Lago Agrio plaintiffs. In this scenario, arbitration tribunals are called on to take into account the interest of those affected and enable their participation in the trial in order to guaranty transparency and a fair process. In the context of this case, it is also necessary to point out that the Republic of Ecuador and PetroEcuador should also be prosecuted for environmental damage and violations to human rights since they were also parties of the joint venture agreement. The Republic of Ecuador cannot be excluded from responsibility in respect to violations to the rights of its citizens to live in a healthy environment and in respect to the individual rights of people affected by the oil extraction.

2.

Responsibility and Accountability for Transnational Corporations and other Business Enterprises in Relation to Human Rights and Environmental Protection

Transnational Corporations (TNCs) are economic agents which can take a variety of legal forms. Most commonly, TNCs are formed either of a group of economic entities operating in more than one country or of a parent company headquartered in a home country which owns subsidiaries incorporated in various host countries. These corporations operate under a common strategy and system of decision-making. The internationalization of such corporations aims primarily at the specialization of economy by locating specific activities, whether management, production, marketing and finance, in countries which offer the best advantages for the development of such activities.1459 According to the World Investment Report 2006, there are about 77,000 TNCs with some 770,000 subsidiaries. Approximately 20,000 of TNCs are located in developing countries.1460 Developing countries offer TNCs favourable conditions for their operations, less stringent environmental regulations, access to natural resources, 1459 United Nations Commission on Transnational Corporations, ‘United Nations Code of Conduct for Transnational Corporations’ (1990) Par. 1 (a); Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003), Par. 20; Anton and Shelton, Environmental Protection and Human Rights (2011) 865 1460 UNCTAD, ‘World Investment Report 2006’ (UNCTAD, 2006) 10 accessed 24 July 2013

Corporate Responsibility and Accountability for Transnational Corporations

339

cheap labour and tax advantages, among others.1461 In the particular case of the extraction of energy resources, developing countries grant concessions to foreign multinational extraction corporations not only because of their capital and know-how in the field but also because the revenues derived from such activities which in most are a major source of national revenue.1462 Notwithstanding the competitive advantages, investing in developing countries also involves risks for foreign investors.1463 In order to protect foreign investment, international investment agreements – Bilateral Investment Treaties (BITs) and Multilateral Investment Treaties (MITs) – provide a number of protection standards under international law1464. Certainly, the protection of foreign investments has encouraged investment flows and the expansion of TNC which in turn have contributed to the social and economic development in developing countries. However, foreign investments and the protection mechanisms have also led to imbalances between States and corporations when ruling on and prosecuting the liability of TNCs for negative effects on the environment and for human rights violations resulting from the operations of foreign corporations.1465 ‘The only social responsibility of a corporation is to make money. Period.’1466 This statement made by Milton Friedman, recipient of the 1976 Nobel Memorial Prize for Economic Sciences, is certainly accurate from an economic perspective. Nevertheless, TNCs have other responsibilities towards the rule of law and the society in countries where they are domiciled and operate. From a legal perspective, TNC are principally subject to the laws and the jurisdiction of the courts of the host countries in which they unfold their activities.1467 However, the political and economical power of TNCs in conjunction with their special legal status and international protection standards have made it difficult for States to regulate and establish liability for corporate wrongdoing at international and 1461 Rodgers Kalas Peggy, ‘The Implication of Jota vs Texaco and the Accountability of Transnational Corporation’ (2000) vol 12 Peace International Law Review 17 – 31, 18 1462 Wawryk Alexandra S, ‘The Adoption of International Environmental Standards by Transnational Oil Companies: Reducing the Impact of Oil Operations In Emerging Economies’ (2002) 1 ; Kriger Natalia, ‘Gewinnung natürlicher Ressourcen in Konfliktsituationen: Bestandaufnahme zu den Positionen und Strategien relevanter EZ-Akteure’, (BICC, 2007) 5 1463 Cotula and others, Land grab or development opportunity? (2008) 1464 Protection standards are for example fair and equitable treatment, access to justice and due process, protection to property, international dispute settlement among others. 1465 Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008), Par. 12 1466 This phrase of Milton Friedman, recipient of the 1976 Nobel Memorial Prize in Economic Sciences, was extracted from Chapter 11, ‘Human Rights, the Environment and Corporate Accountability’ in Anton and Shelton, Environmental Protection and Human Rights (2011) 863 1467 Özdem, Transnational Corporations and Human Rights (2005) 9

340

The Link Between Human Rights and the Environment

domestic levels. One of the main challenges when holding TNCs liable for their acts is their legal form. TNCs are usually comprised of a parent company and several subsidiaries, each of them with a different legal status and personality. Furthermore, the rules to which they are subject, differ depending on the domestic legal system where they are incorporated.1468 These factors have significantly hindered the establishment of liability for corporate wrongdoing since the legal liability of a parent company does not cover wrongs or violations committed by a subsidiary even in cases where it is the sole shareholder unless the parent exercises close operational control over the subsidiary which is acting as a mere agent.1469 Moreover, States face further challenges towards establishing the accountability of TNCs in the area of human rights and environmental law. With respect to human rights, private persons, individuals or legal entities, are not directly bound to human rights standards derived from international customary law.1470 However, they have the duty to respect human rights and can be held accountable for violations of these rights at a domestic level.1471 In the specific case of a TNC, the fact that they are exclusively subject to domestic legislation and jurisdiction have posed difficulties when prosecuting and establishing the legal liability for human rights abuses by TNCs, especially, in countries with a weak rule of law and fragile state structures.1472 In the area of environmental law, emerging countries have also encountered difficulties in implementing and enforcing environmental law. This deficiency has been exacerbated by international investment protection agreements since the mechanisms contained in those instruments have restricted the ability of host coun-

1468 Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No 38, 7 accessed 24 July 2013; Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008) Par. 13; Anton and Shelton, Environmental Protection and Human Rights (2011) 864 1469 Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No 38, 7 accessed 24 July 2013 1470 Herdegen, Internationales Wirtschaftrecht (2013) 65 (76); Human Rights Council, Business and Human Rights: Towards operationalizing the ”protect, respect and remedy” framework (2009), Par. 2 1471 Art. 29 (1) and (3) of the Universal Declaration of Human Rights 1472 Kriger Natalia, ‘Gewinnung natürlicher Ressourcen in Konfliktsituationen: Bestandaufnahme zu den Positionen und Strategien relevanter EZ-Akteure’, (BICC, 2007) 5 – 6; Amnist†a Internacional and others, ‘Seminario y Conferencias: Relaciones Econûmicas & Derechos Humanos. Estado, comercio y empresas: ¿juego de roles en el escenario global?’ (2009) 3 – 5 accessed 4 August 2013

Corporate Responsibility and Accountability for Transnational Corporations

341

tries to regulate foreign investors.1473 In effect, under these treaties, investors are allowed to make claims against a host country before filing at international arbitration courts for damage resulting from the implementation or enforcement of environmental and human rights legislation.1474 Regulations to protect the environment have given rise to arbitration proceedings and have been addressed by arbitrators as expropriation of property.1475 Moreover, changes in national law or court rulings have been interpreted by international arbitrators as a denial of ‘fair and equitable treatment’1476 in cases in which such sanctions resulted in a failure to reach the legitimate expectation of the investor or were based either on the lack of transparency or on a disregard for due process.1477 All these factors have discouraged States from establishing the liability of TNCs for environmental damage as well as for human rights violations.1478 John Ruggie, the former UN Secretary-General’s Special Representative for Business and Human Rights, pointed out that businesses are resistant to binding regulations.1479 However, the pressure to directly regulate TNCs and to hold them accountable for their acts both at international and domestic levels has considerably increased. Public opinion, costumers and NGOs have undertaken various actions, whether through boycotts, labelling campaigns and procurement policies in response to harmful corporations’ activities. Similarly, lawyers with human rights and environmental law backgrounds have promoted legislation at domestic level to prevent and address environmental damage and 1473 Birnie and others, International law & Environment (2009) 327; Dolzer and Thesing, Protecting Our Environment (2000) 1474 Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008), Par. 12 1475 ICSID, Metalclad Corporation vs Mexico (2000) Case No ARB(AF)/97/1, Pars. 102 – 112 1476 ‘Fair and equitable treatment’ clause is ensured in the majority of Bilateral Investment Treaties (BIT’s) and other investment agreements. The main function of this clause is to fill the gaps left by other specific protection clauses. International arbitral tribunals have attempt in several cases to formulate a definition for FET standard. In case TECMED vs Mexico, the Arbitral Tribunal stated that FET clause requires ‘the Contracting Parties to provide to international investments treatment that does not affect the basic expectations that were taken into account by the foreign investor to make the investment.’ In case MTD vs Chile, the Arbitral Tribunal agreed with the definition of Judge Schwebel. This definition establishes the main components of FET standard, viz. good faith, procedural property and due process, nondiscrimination and proportionality. See in Dolzer, Principles of International Investment Law (2008) 120, 122, 130 – 131; ICSID, T¦cnicas Medioambientales TECMED S.A. vs Mexico (2003) Case No. ARB (AF)/00/2, Par. 154; ICSID, MTD Equity Sdn. Bhd. and MTD Chile S.A. vs Chile (2004) Case No. ARB/01/7, Par. 109 1477 ICSID, Metalclad Corporation vs Mexico (2000) Case No ARB(AF)/97/1, Pars. 99 – 101 1478 Birnie and others, International law & Environment (2009) 327 1479 Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No 38, 15 accessed 24 July 2013

342

The Link Between Human Rights and the Environment

human rights abuses.1480 In response to the reaction of civil society, corporations as well as industrial sectors have promoted self-regulation initiatives through codes of conduct, independent certification programs and by exercising pressure for ethical investments on their shareholders. These initiatives have put forward the concept of corporate social responsibility.1481 In the oil sector, for example, industry association bodies, NGOs and intergovernmental organizations (IGOs) have developed environmental standards and best operating practices with the aim to harmonize standards and operating practices worldwide.1482 However, all these efforts undertaken by TNCs are not sufficient to address corporate liability. Under this premise, the following analysis aims to explain several standards which seek to regulate TNC liability both in the area of human rights and the environment. a.

Corporate Responsibility and Accountability for TNCs With Respect to Human Rights

Standards of corporate responsibility and accountability for TNCs and other business enterprises have been addressed by human rights bodies such as the CCPR and CESCR. These standards are classified into five main categories: the State protection duty, corporate responsibility and accountability for international offenses, corporate responsibility for human rights under international law, non-binding international mechanisms and self-regulation.1483 Under international law, States have within their jurisdiction the positive duty to protect individuals from human rights violations committed by third parties including business entities.1484 Although international human rights treaties do not directly refer to business enterprises, the requirement on States to rule on the acts of third parties and corporations is implicitly recognized by these instruments.1485 Both the Human Rights Committee and the CESCR explain in depth in 1480 Anton and Shelton, Environmental Protection and Human Rights (2011) 864 1481 Anton and Shelton, Environmental Protection and Human Rights (2011) 864 1482 Wawryk Alexandra S, ‘The Adoption of International Environmental Standards by Transnational Oil Companies: Reducing the Impact of Oil Operations In Emerging Economies’ (2002) 2 – 3 1483 Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No 38, 13 accessed 24 July 2013 1484 Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No 38, 13 accessed 24 July 2013 1485 Ruggie, ‘State responsibilities to regulate and adjudicate corporate activities under the

Corporate Responsibility and Accountability for Transnational Corporations

343

their commentaries the scope of the obligation to protect human rights vis-—-vis business enterprises. In effect, the Human Rights Committee confirmed in General Comment 31 that States have the positive obligation under Article 2 (1) of the ICCPR to protect individuals against acts committed by private persons or entities that impair the enjoyment of rights established in the ICCPR in so far as these apply between private persons or entities.1486 In addition to this recognition by the Human Rights Committee, the CESCR affirmed in its General Comments the importance of adequate steps to rule on and adjudicate acts of corporations to meet the protection duty of the States.1487 In the particular case of the extraction sector, the CESCR expressed its concern about the negative impact of extraction companies’ activities on the environment and human health.1488 In this connection, the CESCR has emphasized that the protection duty of the States includes the adoption of measures to protect individuals in their jurisdiction from environmental pollution and from damage caused by private companies.1489 This means that host States are obliged under international law to rule on TNC activities in order to prevent human rights abuses. In the most recent commentaries, treaty bodies have extended the protection duty to States in which TNCs are domiciled. Accordingly, the home States have the duty to hold corporations accountable for violations of human rights in foreign jurisdictions when the foreign country is unwilling or unable to do so.1490 Although the Committees do not expressly require the exercise of extraterritorial regulatory jurisdiction over human rights violations, they have encouraged home States to take regulatory actions to prevent human rights abuses committed overseas by corporations based on their territory whilst a recognized basis of jurisdiction exists and the action of the home State meets a

1486 1487

1488 1489 1490

United Nations core human rights treaties: an overview of treaty body commentaries’ (2007), Pars. 12, 17 HRC, General Comment No. 31 (80), Nature of the General Legal Obligation imposed on States Parties to the Covenant (2004) Par. 8 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Pars. 20 and 27; CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 35; CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 23; CESCR, General Comment No 18, The right to work (Art. 6) (2005), Par. 33 CESCR, Concluding observations of the Committee on Economic, Social and Cultural Rights: Ecuador (2004), Par. 12 United Nations Office of the High Commissioner for Human Rights, The right to health (2008) Fact Sheet No 31, 30 According to Anand Grover, Special Rapparteur on the right to health, this abuses include violations committed by their foreign subsidiaries, joint ventures, partnerships with foreign companies or supply-chain relationships which may have distinct legal personality but nonetheless operate under the control of the parent corporation. See in Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 56

344

The Link Between Human Rights and the Environment

general test of reasonability which includes non-intervention in the internal affairs of other States.1491 For instance, in General Comment 15 the CESCR recommended State parties to take steps to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries.1492 Notwithstanding these recommendations, home States of TNCs are still reluctant to regulate negative impact caused by TNCs beyond their borders because of the extraterritorial effect of such a regulation as well as the fear of losing investments and the possible relocation of TNC head offices.1493 In order to perform their protection duty, States are required to take appropriate and effective measures to monitor, rule on and adjudicate third party activities which may prevent individuals from exercising human rights.1494 Consistent and independent monitoring of third-party activities has been viewed by treaty bodies as an important step towards preventing human rights abuses from extraction projects.1495 For example, the CERD recommended States ‘to set up an independent body to conduct environmental impact surveys before any operating licenses are issued, or to conduct health and safety checks on small-scale as well as industrial gold-mining.’1496 In addition, treaty bodies require States to rule on and prevent third-party abuses by adopting administrative and legislative measures to ensure the full enjoyment of rights. Unfortunately, the content and scope of the legislation to be adopted in such issue is specified neither in their commentaries nor features in their observations.1497 With respect to the extraction of natural resources, in the Concluding Ob1491 Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No 38, 15 accessed 24 July 2013; Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008) Par. 19; Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2012), Par. 56 1492 CESCR, General Comment No 15, The right to water (Art. 11 and 12) (2002), Par. 33 1493 Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008) Par. 14 1494 HRC, General Comment No. 31 (80), Nature of the General Legal Obligation imposed on States Parties to the Covenant (2004) Par. 8; Ruggie, ‘State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries’ (2007), Par. 39 1495 Ruggie, ‘State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries’ (2007), Par. 40 1496 CERD, Concluding observations of the Committee on the Elimination of Racial Discrimination: Suriname (2009) Par. 15 1497 Ruggie, ‘State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries’ (2007), Pars. 42 – 43

Corporate Responsibility and Accountability for Transnational Corporations

345

servations for Ecuador of 2004, the CESCR expressed its concern about granting natural extracting concessions to international companies without the full consent of the communities affected by them, especially by indigenous peoples. In the view of this situation, the Committee urged Ecuador to ‘consult and seek the consent of the indigenous peoples concerned prior to the implementation of natural extraction projects and on public policy affecting them.’1498 Moreover, the Committee recommended the State to ‘implement legislative and administrative measures to avoid violations of environmental laws and rights by transnational companies.’1499 While it is true that, by virtue of the principle of permanent sovereignty over natural resources, regulations governing the exploitation of natural resources within individual countries remain in the hands of national governments, international human rights bodies have developed and recommended several measures with a view to improve regulations in domestic laws. The Special Representative for Business and Human Rights, John Ruggie, identify three measures in treaty bodies which aim to govern the extraction of natural resources. First, States should adopt a legislative framework which establishes core principles governing the exploitation of land and natural resources. Second, States should obtain information and monitor possible environmental effects of large development and extraction projects prior to their implementation. Third, States should lay down rules for ensuring the participation in the decision-making process of affected communities, in particular indigenous peoples.1500 The effective implementation of such measures strongly depends on adequate enforcement mechanisms. In the specific case of human rights abuses committed by TNCs, access to justice requires States to strengthen judicial capacity to ensure proper proceedings to prosecute claims of corporate abuses and to enforce remedies against corporations operating and based in their territory.1501 Moreover, States are called on to remove any legal obstacle which may hinder foreign plaintiffs from access justice and to cooperate with one another to bring to justice persons suspected of human rights violations punishable under domestic or interna-

1498 CESCR, Concluding observations of the Committee on Economic, Social and Cultural Rights: Ecuador (2004) Pars. 12 and 35 1499 CESCR, Concluding observations of the Committee on Economic, Social and Cultural Rights: Ecuador (2004) Par. 35; Ruggie, ‘State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries’ (2007), Par. 45 1500 Ruggie, ‘State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries’ (2007), Par. 49 1501 Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008) 91

346

The Link Between Human Rights and the Environment

tional law.1502 On this basis, States have on the one hand a duty under international law to give individuals access to justice. On the other hand, by virtue of international law and international investment agreements, States are required to ensure that foreign investors, too, have the right to access to the courts of the host State, to fair treatment during the proceedings and to obtain an appropriate ruling at the end of the process.1503 This double obligation of the State in relation to the access to justice have resulted in a conflict of interests in cases relating to human rights violations caused by environmentally adverse TNC activities. Both the victims of corporate abuses and foreign investors have faced difficulties to obtain a fair trial either because a lack of legislation and institutions or because of political and economic pressures.1504 Seeking remedy, victims have had two options. One alternative has been to prosecute States before regional human rights courts for breaching their protection duty.1505 Another option has been for the citizens of host States to file claims against TNCs before domestic courts where those corporations are domiciled. This latter alternative has posed challenges to plaintiffs. The economic cost, the lack of sufficient legal structures in home State legislation for supporting such claim and the different legal status between a parent corporation and its subsidiaries have made remedial action and redress against TNC acts in host States difficult.1506 For example, the forum of non-convenience to dismiss a case in the United States has been a serious barrier to holding TNCs liable. To these difficulties is added the fact that foreign investors are enabled by virtue of dispute settlement clause in international investment agreements to file complaints against the host State before a binding international arbitration tribunal when, for example, host State did not abide by the protection standards of free and equitable treatment by denying access to justice or by not ensuring a fair trial. Unfortunately, in such international arbitration proceedings, arbitrators rule on the basis of investment agreements and principles of international law so that human rights and environmental conservation practically play no role. Additionally, such proceedings are conducted in strict confidentiality so

1502 HRC, General Comment No. 31 (80), Nature of the General Legal Obligation imposed on States Parties to the Covenant (2004) Par. 18 1503 Dolzer, Principles of International Investment Law (2008) 163 1504 Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008) 88 1505 ACmHPR, The Social and Economic Rights Action Center and the Center for Economic and Social Rights vs Nigeria (2002) no 155/96, Par. 60 1506 Lang Weaver, ‘Sustainable development in the petroleum sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development(2003) 66; Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008) 89

Corporate Responsibility and Accountability for Transnational Corporations

347

that individuals affected by the investment project have virtually no access to them.1507 In order to ensure full transparency of international arbitration proceedings, international investment agreements should in future allow third parties affected by the actions of private investors to participate and make submissions to the arbitration tribunals in the form, for example, of amicus briefs.1508 Arbitration tribunals should be aware that arbitration proceedings are by no means open to forum shopping, especially in cases where local judgements have ruled against human rights violations or environmental impact perpetrated by foreign investors. The case of Texaco-Chevron vs Ecuador illustrates the negative implications that forum shopping has on the right of access to justice. Texaco clearly expressed before US Courts its confidence in the administration of justice by Ecuadorian courts. While it is true that the Lago Agrio decision against Texaco is controversial due to the particularly high amount awarded for environmental damage, the arbitration tribunal in The Hague should take into account the right of access to justice of the affected groups in Ecuadorian part of Amazonia who for over 20 years have been seeking redress and remedy before international and national courts for human rights violations resulting from environmental damage. Given these facts, States must attempt to strike a fair balance between their duty to protect individuals from acts of third parties and their obligation to protect foreign investment and interests. To assist States in this undertaking, it is necessary that international investment treaties include human rights and environmental clauses to govern the conduct of foreign investors as well as to set up enforcement mechanisms. This, in turn, will help arbitration courts in their rulings on investment, human rights and environmental matters. The second main category covers corporate responsibility and accountability for international offences. According to John Ruggie, former Special Representative for Business and Human Rights of the UN’s Secretary-General, there is an increasing potential for companies to be held liable for international offenses. Therefore, Ruggie recommends States to introduce in their legal systems criminal penalties for offenses perpetrated by legal entities such as corporations in foreign states.1509 In this connection, corporations may also face the risk of 1507 Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008) 37 1508 Kass Stephen, ‘Lessons From Lago Agrio Environmental Pollution Case’ (2011) New York Law Journal 1509 Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No 38, 17 accessed 24 July 2013

348

The Link Between Human Rights and the Environment

complicity in international crimes and human rights violations. Indeed, the indirect involvement of corporations in human rights violations implies a breach of the corporate responsibility of TNCs to respect human rights.1510 International Criminal Tribunal for Rwanda (ICTR) as well as the International Criminal Tribunal for the former Yugoslavia (ICTY) laid down three criteria required under international criminal law to determine individual liability for aiding and abetting. These are practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.1511 In the view of Ruggie, these criteria are not only applicable to individuals but also to corporations.1512 In this context, the prosecution of TNCs for international offenses constitutes an important step toward ensuring human rights and reducing the perpetration of acts contrary to humanity. With respect to the third category, corporate responsibility for human rights under international law, business enterprises are compelled to comply with national law and to respect human rights.1513 This means that third parties including corporations, are urged to work together with the State to ensure the realization of human rights. In its commentaries, the CESCR has stressed the responsibility of third parties for the fulfilment of States’ obligation.1514 Echoing these recommendations, States can urge companies to present reports about rights-related performance or to disclose information. For example, Swedish state-owned enterprises are required to assure sustainability reports based on the Global Reporting Initiative.1515 On the other hand, UN bodies made also clear that this responsibility imposes under no circumstances any kind of international obligation on corporations. Indeed, the CESCR pointed out in General Comment 18 that private enterprises, whether domestic or multinational, are not 1510 Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008) 73 – 74 1511 ICTR, Prosecutor vs Jean-Paul Akayesu (1998) ICTR-96 – 4-T, Pars. 484, 538, 548, 693, 694; ICTY, Prosecutor vs Anto Furundzija (1998) IT-95 – 17/1-T, Par. 235 1512 Zapata vs Quinn, 707 F.2d 691 (2d Cir 1983) 692; Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No 38, 18 accessed 24 July 2013 1513 Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No 38, 19 – 20 accessed 24 July 2013; Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008) 4 1514 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 20; CESCR, General Comment No 14, The right to the highest attainable standard of health (Art. 12) (2000), Par. 42 1515 Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (2008) 30

Corporate Responsibility and Accountability for Transnational Corporations

349

bound by the ICESCR.1516 Likewise, the Human Rights Committee stated in General Comment 31 that according to Article 2 (1), obligations do not have direct horizontal effect in terms of international law so that the Covenant cannot be considered a substitute for domestic criminal or civil law.1517 On the basis of this interpretation by treaty bodies, corporations have an ethical responsibility to realizate human rights at international level. This, in turn, corroborates the crucial role of national legislation and enforcement mechanisms at domestic level to hold TNCs liable for their acts. The difficulty in addressing corporate responsibility and accountability for the violation of human rights as well as the growing expectation of public opinion with respect the negative impact of operations of TNCs on human rights have given rise to the development of non-binding mechanisms.1518 International organizations have launched several voluntary codes such as the Global Compact and the OECD Guidelines for Multinational Enterprises. Regarding the Global Compact, this initiative, promoted by former UN General Secretary Kofi Annan, has become the world’s largest corporate social responsibility initiative with the participation of about 3,000 companies and 40 national networks.1519 It encompasses 10 principles related to human rights, labour standards, environmental protection and anti-corruption that signatory companies pledge to respect. This voluntary initiative, engaging corporations and civil society, aims at having TNCs develop their activities in a fair and sustainable way. In relation to the protection of the rights of indigenous people, the Global Compact worked closely with the Permanent Forum on Indigenous Issues on a business reference guide on the Declaration on the Rights of Indigenous Peoples. As an authoritative body in the context of corporate and state human rights duties and responsibilities, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) constitutes a key reference for the development of the Guide.1520 Despite 1516 CESCR, General Comment No 18, The right to work (Art. 6) (2005), Par. 52 1517 HRC, General Comment No. 31 (80), Nature of the General Legal Obligation imposed on States Parties to the Covenant (2004) Par. 8 1518 Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No. 38, 20 – 21 accessed 24 July 2013; United Nations Office of the High Commissioner for Human Rights, The Right to Health (2008) Fact Sheet No. 31, 30; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The Right to Water (2010) Fact Sheet No. 35, 31 – 32 1519 Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Imitative, Working Paper No. 38, 2 accessed 24 July 2013 1520 Doyle Catha M., Indigenous Peoples’ Issues & Participation at the UN Forum on Business and Human Rights (2014) 8

350

The Link Between Human Rights and the Environment

these developments, the Global Compact unfortunately lacks control functions and sanctions to monitor compliance with these principles.1521 Inter-governmental organizations (IGOs) have also taken steps towards the development of voluntary principles and standards such as the OECD Guidelines for Multinational Enterprises. The Organization of Economic Cooperation and Development (OECD) adopted the Guidelines for Multinational Enterprises with the purpose of encouraging TNCs to respect ‘the internationally recognized human rights of those affected by their activities’.1522 The Guideline contains voluntary principals for a responsible business conduct including employment, human rights and the environment.1523 In case of an infringement of the Guidelines by transnational corporations operating or domiciled in a member state, individuals are empowered to file complaints before the so-called National Contact Points (NCPs) which may then lead to a conciliation procedure. The OECD National Contact Points have played a major role in controversies between indigenous peoples and TNCs. Three cases, brought before NCPs in Norway and the United Kingdom, illustrate actual violations of indigenous peoples’ rights committed by TNCs. The cases involve the construction of a bauxite mine in India1524, the Mindoro Nickel Project in the Philippines1525, and the plans to develop a mine in Ban-

1521 Kriger Natalia, ‘Gewinnung natürlicher Ressourcen in Konfliktsituationen: Bestandaufnahme zu den Positionen und Strategien relevanter EZ-Akteure’, ( BICC, 2007) 10 1522 OECD, OECD Guidelines for Multinational Enterprises (OECD, 2011 Edition), ch II (A) (2) 1523 The UK NCP, Final Statement Complaint from Survival International Vs Vedanta Resources plc (2009) Par. 1; The UK NCP, Final Statement Complaint from International Accountability Project and World Development Movement Vs GCM Resources plc (2014) Par. 1 1524 Survival International’s complaint against Vedanta Resources plc focused on the construction of a bauxite mine in India. One of the allegations of Survival International was that Vedanta failed to consult Dongria Kondh, an indigenous group affected by its operation. On the basis of the evidence, the UK NCP concluded that Vedanta did not carry out adequate and timely consultations on the impact that the construction of a bauxite mine would have on the enjoyment of the rights and concessions of the Dongria Kondh group. See the UK NCP, Final Statement Complaint from Survival International against Vedanta Resources plc (2009) Pars. 8, 10 (a) and 60. 1525 The Norwegian Contact Point for the OECD Guidelines for Multinational Enterprises received a complaint against Intex Resources ASA from the Future In Our Hands regarding the Mindoro Nickel Project in the Philippines. Future In Our Hands alleged that the consultations with indigenous people were flawed and the wishes of the affected community and peoples were disregarded by the Project. The NCP asserted that even though the Philippines developed ‘Free, Prior and Informed Consent’ provisions in its legislation, their implementation was still lacking. In this case, the Norwegian NCP found that Intex did not investigate which groups are the legitimate representatives of the affected peoples. See the Norwegian NCP, Final Statement of Complaint of The Future In Our Hands (FIOH) Vs Intex Resources ASA and the Mindoro Nickel Project (2011) 5, 18 and 28.

Corporate Responsibility and Accountability for Transnational Corporations

351

gladesh1526. A common element of these cases is the failure to carry out adequate and timely consultations. To address this issue, both NCPs made States and stakeholders involved aware of the significance of the UNDRIP as a core international standard on the rights of indigenous peoples. On the basis of this Declaration, the NCPs urged States to consult the indigenous people concerned to obtain free and informed consent of any project affecting their lands, territories or resources in accordance with their customs and traditions.1527 Furthermore, the UK NCP recommended in Complaint of Survival International against Vedanta Resources plc the application of the Akwe:Kon Guidelines as a reference point for carrying out ‘adequate and timely’ consultation with indigenous people.1528 These cases demonstrate the growing recognition of the UNDRIP and the free, prior and informed consent as a mechanism to protect indigenous peoples’ rights. Just as the Global Compact, the effect of the Guidelines is still limited since it lacks of effective sanctions.1529 In addition, international financial institutes have developed standards that corporations must comply with to obtain funding for the implementation of their projects. For instance, the International Finance Corporation (IFC) launched the IFC Performance Standards on Environmental and Social Sustainability. According to the IFC, ‘Performance Standards are directed towards clients, providing guidance on how to identify risks and impact and are designed to help avoid, mitigate and manage risks and impact as a way of doing business in a sustainable way including stakeholder engagement and disclosure obligations of the client in relation to project-level activities. In the case of its direct investments (including project and corporate finance provided through financial intermediaries), IFC requires its clients to apply the Per-

1526 The International Accountability Project alleged before the UK NCP that by pursuing plans to develop a mine at Phulbari in Bangladesh, GCM Resource plc failed to respect the rights of communities in the area. By contrast, GCM denied the allegations and asserted that its plans had been developed with regard to the rights and the views of the communities concerned. After analyzing the evidence, the NCP found that GCM partly breached its obligation to develop self-regulatory practices and management systems. See the UK NCP, Final Statement of Complaint of International Accountability Project and World Development Movement Vs GCM Resources plc (2014) Pars. 7 and 77. 1527 Art. 18 and Art. 32 (2) of the UNDRIP 1528 The UK NCP, Final Statement Complaint from Survival International against Vedanta Resources plc (2009) Pars. 44, 58 – 59, 74; Norwegian NCP, Final Statement Complaint from the Future In Our Hands (FIOH) against Intex Resources ASA and the Mindoro Nickel Project (2011) 21; The UK NCP, Final Statement Complaint from International Accountability Project and World Development Movement against GCM Resources plc (2014) Pars. 71 – 71 1529 Kriger Natalia, ‘Gewinnung natürlicher Ressourcen in Konfliktsituationen: Bestandaufnahme zu den Positionen und Strategien relevanter EZ-Akteure’, (BICC, 2007) 10

352

The Link Between Human Rights and the Environment

formance Standards to manage environmental and social risks and impact so that development opportunities are enhanced.’1530

Corporations, states and civil organizations have worked together in the elaboration of multi-stakeholders initiatives to address sources of corporate-related human rights abuses. In the extraction sector, two voluntary initiatives stand out: the Voluntary Principles on Security and Human rights as well as the Extraction Industries Transparency Initiative (EITI). The first initiative was launched in 2000 by the governments of the United States, the United Kingdom, the Netherlands and Norway ; companies in the extraction and energy sectors; and non-governmental organizations. The aim of the initiative was to guide companies in maintaining the safety and security of their operations within an operating framework that ensures respect for human rights.1531 Similarly, the EITI seeks an improvement of transparency in relation to the payments by the extraction industry to the host governments. A basic premise of this Initiative is that in countries with weak governmental structures, private or state revenues obtained from oil, natural gas and coal will lead to poverty, corruption and conflicts. Therefore, this initiative aims to strengthen good governance in resource-rich countries through transparency of financial operations and conflict prevention. This implies the full disclosure and verification of companies’ payments and governments’ receipt of payments from extraction activities. It is important to emphasize that the EITI is voluntary for governments; by contrast, it is obligatory for companies once they have signed up for the Initiative. Participants in this Initiative are 39 countries rich in raw materials1532, multinational energy corporations, NGOs and international organizations such as the World Bank, the IMF and OECD. The main weakness of EITI just as that of other initiatives is its voluntariness and its lack of control and enforcement mechanisms.1533 The last category corresponds to self-regulation. A number of corporations have elaborated their own human rights policies, programs and tools to include human rights issues in their business operations.1534 In the extraction sector, industrial trade associations as well as corporations have undertaken efforts to 1530 International Finance Corporation, IFC Performance Standards on Environmental and Social Sustainability (IFC, 2012) 2 1531 www.voluntaryprinciples.org 1532 http://eiti.org/countries 1533 Kriger Natalia, ‘Gewinnung natürlicher Ressourcen in Konfliktsituationen: Bestandaufnahme zu den Positionen und Strategien relevanter EZ-Akteure’, ( BICC, 2007) 9 1534 UN Office of the High Commissioner for Human Rights, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1, 37; United Nations Office of the High Commissioner for Human Rights, The right to health (2008) Fact Sheet No 31, 30; United Nations Office of the High Commissioner for Human Rights and World Health Organization, The right to water (2010) Fact Sheet No 35, 31 – 32

Corporate Responsibility and Accountability for Transnational Corporations

353

compensate for the absence of hard-line international law, national statutes or contractual provisions relating to human rights and environmental conservation. For these purposes, they have developed codes of conduct whose applicability aims at an international scope.1535 These voluntary codes encourage social responsibility of extraction corporations in the area of operation. Moreover, they ensure that corporations take all necessary steps to protect the environment from negative impact during operations.1536 As with the other voluntary initiatives, unfortunately codes of conduct lack of external scrutiny and enforcement mechanisms. As a result, the implementation and fulfilment of such codes are confined to the good will of corporations. While it is true that standards and guidelines developed by IGOs, industry associations and corporations are not legally binding, they have legal consequences due to their application in national courts. The ongoing and widespread implementation of industry guidelines may constitute an evidence of best practices of an industry in litigation against a corporation. In effect, guidelines can be used by national courts as possible support for the interpretation of contracts with governments that require the application of best practice, or for the interpretation legal provisions that require the use of good international practice.1537 Despite of this positive use of the guidelines, it is risky to hold the view that moving towards a ‘privatization of environmental law’ through the proliferation of voluntary codes and guidelines is the way to make TNCs accountable. Voluntary codes and guidelines, developed by the private sector, are helpful; however, they should never replace regulations emanating from the ‘public sphere’.1538

1535 Lang Weaver, ‘Sustainable development in the petroleum sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 64 – 65 1536 CESCR, General Comment No 12, The right to adequate food (Art. 11) (1999), Par. 20; Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (2010) 132 1537 Wawryk Alexandra S, ‘The Adoption of International Environmental Standards by Transnational Oil Companies: Reducing the Impact of Oil Operations In Emerging Economies’ (2002) 24 – 25 1538 Wawryk Alexandra S, ‘The Adoption of International Environmental Standards by Transnational Oil Companies: Reducing the Impact of Oil Operations In Emerging Economies’ (2002) 29

354 b.

The Link Between Human Rights and the Environment

Corporate Responsibility and Accountability for TNCs With Respect to International Environmental Law

The impact of corporation’s operations on the environment is mainly felt at domestic level. Regarding the regulation of the mining of natural resources, States have adopted three methods to deal with the consequences of extraction operations on the environment. According to the first approach, the environmental framework is composed of several statutes which broadly govern the industries. Moreover, a number of different agencies appeared over the years to administer, interpret and apply these statutory norms in response to given circumstances. The lack of harmonization and unification of this body of norms give rise to a confusing and uncoordinated application of the law.1539 A second approach encompasses a comprehensive and integrated environmental legislation to govern a specific extraction sector. This body of norms integrates important standards and principles of international environmental law such as the requirement of EIAs, the requirement of environmental insurance, performance bonds, environmental audits, oil spill response capability and decommissioning and abandonment funds. Furthermore, this legislation encompasses enforcement mechanisms for environmental damage caused by TNCs, like the suspension or cancellation of licenses, fines and criminal penalties, environmental charges and taxes.1540 In this context, industrialized countries have developed comprehensive and harmonized legislation which stringently regulates the impact of extraction operations on the environment within their borders.1541 By contrast, many developing countries are still setting up environmental legislation. In order to strengthen the efforts of developing countries with designing and implementing environmental legislation for the extraction sector, industrialized States have been promoting, under the principle of international cooperation, transparency in resource management. The Norwegian government, for instance, encourages and invests in the development of consulting projects aiming a sustainable resource management. Moreover, Norway provides information through its extraction companies operating overseas about case law, administrative and regulation mechanisms and conservation, inter alia.1542 The third approach relates to the regulation of environmental obligation of 1539 Lang Weaver, ‘Sustainable development in the petroleum sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 61 1540 Lang Weaver, ‘Sustainable development in the petroleum sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 61 – 62 1541 Rodgers Kalas Peggy, ‘The Implication of Jota vs Texaco and the Accountability of Transnational Corporation’ (2000) vol 12 Peace International Law Review 17 – 31, 19 1542 Kriger Natalia, ‘Gewinnung natürlicher Ressourcen in Konfliktsituationen: Bestandaufnahme zu den Positionen und Strategien relevanter EZ-Akteure’, ( BICC, 2007) 19

Corporate Responsibility and Accountability for Transnational Corporations

355

extraction corporations under private law. On the one hand, TNCs enter into contracts with the host States to extract natural resources. These agreements are protected under international investment law and may include environmental standards as part of the terms.1543 Until the 1990s, international extraction agreements, especially in the oil sector, lacked environmental provisions since the focus of these contracts was merely on the commercial aspects. This approach has changed in the last two decades. Today, environmental conservation plays an important role in negotiations between multinational companies and host countries.1544 Codes of conduct on the other hand are a form of private regulation of environmental issues. The adoption of voluntary ‘best practices’ elaborated by extraction corporations has constituted a response to the absence of adequate environmental law and to effective enforcement in developing countries. In addition to these legal approaches, an economic tool, called ‘green’ accounting, has been adopted in the last few decades to complement the effectiveness of environmental laws. The aim of a ‘green’ national accounting at national level is to internalize the costs of environmental impact of extraction operations in fiscal accounts. This tool can be implemented on the basis of two methods. One method is the inclusion of the depletion of natural resources into national income accounting by deducing the value of the resources produced and used from the nation’s Gross Domestic Product. Another method is to deduct damage to the environment from the Gross Domestic Product. Trust funds are another measure which places a certain percentage of the royalties and taxes revenues from extraction for future use.1545 In this regard, not only States but also corporations are urged to internalize external costs arising from environmental damage. This economic perspective of a corporation’s accountability for environmental pollution has its roots in the ‘polluter pays’ principle. The polluter-pays principle is closely linked to the concept of sustainable development. The objective of the principle is to protect the interest of future generations from the impact of natural resource use. Moreover, it aims to control the behaviour of the present generation over the extraction of natural resources.1546 In this regard, the ‘polluter pays’ principle answer the question of who is to bear the cost of environmental measures.1547 The origin of the “Polluter 1543 Lang Weaver, ‘Sustainable development in the petroleum sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 62 1544 Lang Weaver, ‘Sustainable development in the petroleum sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 63 1545 Lang Weaver, ‘Sustainable development in the petroleum sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development (2003) 51 – 52 1546 ; Epiney and Scheyli, Strukturprinzipien (1998) 96; Epiney and Scheyli, Umweltvölkerrecht (2000) 92 1547 Epiney and Scheyli, Strukturprinzipien (1998) 96

356

The Link Between Human Rights and the Environment

Pays Principle” goes back to the Trail Smelter case. This case established for the first time that a State bears responsibility for the contamination caused by a private company beyond its borders.1548 The International Environmental Law Commission (ILC) pointed out in this respect that ‘[e]ven though in that case Canada took upon itself the obligation to pay the necessary compensation on behalf of the private company, the basic principle established in that case entailed a duty of a State to ensure payment of prompt and adequate compensation for any cross-border damage.’1549 However, it not was until 1972 that the Polluter Pays Principle came to light. The 1972 OECD Recommendation on Guiding Principles Concerning International Economic Aspects of Environmental Policy constituted the first international instrument to refer expressly to the principle.1550 According to the definition developed within the OECD framework, the Polluter Pays Principle urges national authorities to ensure in cases where the environment has been at or runs the risk of being polluted that the legal or natural person accountable for the contamination bear the costs of the contamination or of measures taken to prevent, reduce or avoid environmental damage.1551 As set out in the OECD Recommendations, the main function of the Polluter Pays Principle is to allocate the costs of pollution prevention and control measures for the purpose of encouraging the rational use of scarce environmental resources and avoiding distortions in international trade and investment.1552 On this basis, it is possible to state that the Polluter Pays Principle is mainly an economic device. On the one hand, the principle aims to internalize environmental costs and to optimize the use of the environment. On the other hand, it seeks to avoid market distortion caused by either open or hidden state subsidies or other public benefits which relieve polluters from the paying for 1548 United Nations, Trail smelter case (United States vs Canada) in Reports of International Arbitral Awards Volume III (1941) 1905 – 1982, 1959, 1965 1549 International Law Commission, ‘Report of the International Law Commission ‘ (UN Doc A/59/10, 2004), commentary to Principle 4, Par. 11; Boyle Alan ‘Globalizing Environmental Liability : The Interplay of National and International Law’ (2005) vol 17 No 1 Journal of Environmental Law 3 – 26, 18; Birnie and others, International law & Environment (2009) 319 1550 Sands, Principles of International Environmental Law (2003) 281 1551 OECD, ‘ Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies’ (Doc C(72)128, 1972), lit A (a) (4); OECD, ‘Recommendation of the Council on the Implementation of the Polluter-Pays Principle’ (Doc C(74)223, 1974), Pars. 1 and 3; Beyerlin und Marauhn, International Environmental Law (2011) 58 1552 OECD, ‘ Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies’ (Doc C(72)128, 1972), lit A (a) (4); OECD, ‘Recommendation of the Council on the Implementation of the Polluter-Pays Principle’ (Doc C(74)223, 1974), Pars. 1 and 3

Corporate Responsibility and Accountability for Transnational Corporations

357

environmental damage.1553 Principle 16 of the Rio Declaration confirms the preponderance of the economic orientation of the Polluter Pays Principle and goes a step further by recommending national authorities to strike a balance between public interest and international trade and investment.1554 In addition to the OECD Recommendations and the Rio Declaration, the Polluter Pays Principle has constituted the foundation of civil liability in several Multilateral Environmental Agreements (MEAs) dealing with environmental pollution. Examples of such instruments are, among other things, the 1969 International Convention on Civil Liability for Oil Pollution Damage; the 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation1555 ; the 1992 UNECE Convention on Cross-Border Effects of Industrial Accidents1556 ; and the 1993 Convention on Civil Liability for Damage Resulting from Activities Hazardous to the Environment1557. Within this framework, international environmental agreements have laid down certain guidelines within the scope of applicability of the Polluter Pays Principle. Regarding the geographical scope, Principle 16 of the Rio Declaration calls on national authorities to promote the internalization of environmental cost. This means that the Principle applies only within the State’s domestic sphere and not to relationships and responsibilities between states at international level.1558 Similarly, the choice of methods for making polluters pay and the degree of the implementation of the Principle has been left to national action.1559 Methods to make polluters pay are, for example, taxation, charges and liability laws.1560 With respect to the extent of pollution costs, the majority of international instruments referring to the Polluter Pays Principle postulate that the originator of environmental pollution bear the costs for prevention, control, decontamination, clean-up and reduction. However, the extent to which the polluter is liable for environmental costs under civil law requires still further clarification.1561 With respect to the status of the Polluter Pays Principle in international law, some 1553 Epiney and Scheyli, Strukturprinzipien (1998) 97, 152, 155; Sands, Principles of International Environmental Law (2003) 280 1554 Epiney and Scheyli, Strukturprinzipien (1998) 155 – 156 1555 Preamble, indent 7 1556 Preamble, indent 9 1557 Article 1 of Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1558 Sands, Principles of International Environmental Law (2003) 280 – 281; Beyerlin und Marauhn, International Environmental Law (2011) 58 1559 Sands, Principles of International Environmental Law (2003) 280; Birnie and others, International law & Environment (2009) 323; Beyerlin und Marauhn, International Environmental Law (2011) 59 1560 Beyerlin und Marauhn, International Environmental Law (2011) 59 1561 Epiney and Scheyli, Strukturprinzipien (1998) 156 – 157; Sands, Principles of International Environmental Law (2003) 285

358

The Link Between Human Rights and the Environment

instruments granted the Principle the status of a ‘general principle of international environmental law’. However, so far there is no international practice relating to the application of this principle.1562 Moreover, binding international environmental law treaties such as the CBD or the Convention on Climate Change, do not make any reference to this principle.1563 Under these circumstances, national and international courts as well as international organizations are still not bound by international law to make polluters pay on the grounds of the Polluter Pays Principle.1564 While it is true that the Polluter Pays Principle needs to be further consolidated at international level, this principle plays a significant role in governing the accountability of TNCs in the context of natural resource extraction. On June 2013, the European Parliament and of the Council adopted Directive 2013/30/EU dealing with the safety of offshore oil and gas operations. The aim of the Directive is to tighten up the safety regulations for offshore oil and gas operations. To achieve this aim, oil and gas companies are required to prove their ability to cover potential liabilities derived from their operations before commencing extraction.1565 Among other requirements, operators have to ensure ‘they have access to sufficient physical human and financial resources to prevent major accidents and limit the consequences of such accidents.’1566 Accordingly, petitioners for operating licenses need to provide, in an appropriate manner, ‘evidence of financial capacity including any financial security, to cover liabilities potentially deriving from the offshore oil and gas operations in question including liability for potential economic damage where such liability is provided for by national law ; […]’.1567 The Directive of the European Union constitutes a model to be followed to prevent environmental damage caused by the extraction of energy resources. In effect, the supply of financial securities as a condition for granting mining licenses should be a major part of any multilateral investment agreement.

1562 Epiney and Scheyli, Umweltvölkerrecht (2000) 92; Preamble, indent 7 of the 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation; Preamble, indent 9 of the 1992 UNECE Convention on Transboundary Effects of Industrial Accidents 1563 Epiney and Scheyli, Strukturprinzipien (1998) 158 – 159 1564 Birnie and others, International law & Environment (2009) 323 1565 Council of the European Union, ‘EU Parliament approves stringent oil and gas drilling legislation’ (2013) 10588/13 PRESSE 245 1566 Article 1 (5) of the Directive 2013/30/EU of the European Parliament and of the Council on safety of offshore oil and gas operations and amending Directive 1567 Article 4 (2) (c) of the Directive 2013/30/EU of the European Parliament and of the Council on safety of offshore oil and gas operations and amending Directive

Corporate Responsibility and Accountability for Transnational Corporations

c.

359

Conclusion

On the one hand, accountability makes it possible for citizens to be informed about how state authorities are complying with their obligations. On the other hand, it opens the way for establishing adequate and effective mechanisms and proceedings to redress and remedy any violation of law. With respect to environmental issues and the enforcement of human right, judicial accountability plays a critical role towards the conservation of the environment and the realization of human rights. The right of access to justice and due process empowered individuals to settle claims before independent and impartial courts to restore their rights. For the purpose of complying with this right, States must ensure independent and fair judgements and the enforcement of such decisions at national and international level. This means that States must create adequate structures and instances staffed by independent authorities to execute judicial and administrative decisions. With respect to the extraction of energy resources, at the moment States are facing challenges to establish the accountability and responsibility of Transnational Corporations (TNCs) for environmental damage and human rights violations. TNCs are economic agents operating worldwide which bring investments and contribute to the economic development of the host State. Nevertheless, their great economic and political power may lead to an imbalance between the interest of these corporations on the one hand and the capacity of States to regulate and establish liability for corporate wrongdoing on the other. In the area of human rights, legal entities are not directly bound to human rights standards. However, they have the duty to respect human rights and can be held accountable for violations of these rights at domestic level. In the area of environmental law, implementation and enforcement of environmental law, particularly in emerging countries, have encountered difficulties for States due to international investment mechanisms which protect TNCs from measures by host countries that could jeopardize the economic expectations of foreign investors. In response to the difficulty to hold TNCs accountable for human rights violations and environmental damage, civil society and organizations have exerted pressure on corporations. This has encouraged the industrial sector to develop self-regulation initiatives such as codes of conducts, independent certification programs and ethical investment pressure by shareholders. Unfortunately, these initiatives still lack external scrutiny and enforcement mechanisms. Therefore, it is necessary to strengthen legislation and its enforcement at domestic level. With respect to the impact that their operations have on the environment, corporations are urged to assume the external costs associated with environmental damage. This economic perspective of a corporation’s accountability for

360

The Link Between Human Rights and the Environment

environmental pollution has its origins in the Polluter Pays Principle. This principle seeks to establish who bears the costs for pollution prevention and control measures with a view to promote the rational use of resources and to prevent distortions in international trade and investment. In this context, Directive 2013/30/EU on safety of offshore oil and gas operations set up an innovative mechanism for obtaining operating licenses for offshore oil and gas operations. According to this measure, operators must prove that they have adequate financial and human resources to face economic liabilities due to accidents in oil and gas operations. On this basis, one may conclude that the implementation of this economic-oriented principle ensures redress and compensation for environmental damage.

E.

Conclusion: The Human Right Dimension of Conservation in the Context of the Extraction of Energy Resources

With the aim to demonstrate the existence of a causal link between the realization of human rights and the conservation of the environment in the context of extraction of energy resources, the study first established the legal basis underlying it. It then determined the influence that human activities have on the environment, human survival and development. Finally, the main question of the study, the existence of a causal link between the realization of human rights and conservation of the environment in the context of the extraction activities, was answered. In Chapter B, the legal basis of the study was defined. On the one hand, human rights have been traditionally conceptualized as rules that protect individuals from State or third-party interference with fundamental aspects of their life. In this study, it was possible to determine that human rights go beyond this protective function since they also seek to ensure that individuals have access to adequate living conditions. In effect, water, adequate sanitation, housing and food are decisive prerequisites for the realization of human rights. These adequate living conditions require access to natural resources and a clean environment. Therefore, adverse changes to the environment will give rise to human rights violations. Consequently, environment and conservation were also analysed in this Chapter. In international environmental law, no internationally accepted concept of the environment has yet been created. For the development of this study, the environment was defined as the sum of environmental media and biological diversity which support the interactions and responses within the nature. Human beings depend on their environment and its delicate interrelationships. In effect, the environment provides human beings with resources and environmental services for their survival and development. The analysis also showed that human activities can have a direct influence on one or more elements of the environment as well as on their interaction, thereby giving rise to changes to ecosystems and resources. Given this close relationship between human beings and the environment, this study is based on the premise that the realization of human rights depends on the quality of environment and the

362

Conclusion

availability of natural resource. Consequently, any impact of human activities on the environment has also an effect on the exercise of human rights. In Chapter C, the study aimed to determine to what extent environmental impacts arising from extraction operations affect the existence and living conditions of individuals and communities. To be usable to the economy, natural resources follow a life cycle. The first phase of this cycle is the extraction of natural resources from the environment. The resources necessary for the generation of energy are mainly raw materials, whether renewable or non-renewable, as well as environmental media. The methods to turn primary energy sources in energy carriers depend on the type of raw resource extracted. Similarly, the impacts on the environment are linked to the method applied for the extraction. This study addressed the extraction’s processes of raw material and the use of environmental media for the generation of non-renewable energy (fossil fuels) and renewable energy (hydroelectric power and biomass). The findings of this analysis indicated that the extraction of energy resources can have a significant impact on the environment and on the availability of resource stocks, which, in turn, affect human development and survival. The extraction of natural resources has been mostly governed by national legislation. In addition, international environmental law instruments address the impact of the extraction of natural resources and have developed measures and mechanisms to prevent, mitigate or avoid such impact. Despite these regulatory efforts at national and international levels, the global demand for energy has placed the availability of and accessibility to energy resources as well as the quality of the environment at a great risk. These considerations show that the extraction of energy resources directly influences human activities on the environment and ecological interrelations, and in the final analysis on human survival and development. In Chapter D, the study attempted to demonstrate the causal link between the realization of human rights and conservation of the environment in the context of the energy resource extraction. For this purpose, substantive human rights and procedural environmental rights were analysed in the light of the environmental impact caused by different extraction activities in the energy sector. The first part of this Chapter dealt with those human rights which have served as a legal foundation for complaints before regional human rights courts when environmental hazards caused by a State’s acts or omissions led to human rights violations. This is the case of the right to property, the right to respect for private and family life and the right to life. In addition, the first part addresses those human rights whose effective implementation depends on environmental protection and on access to natural resources such as the right to adequate living standards, the right to health and the right to water.

Conclusion

363

On the basis of the right to property, regional human rights instances have provided important guidelines to be taken into account in the development of extraction projects. The European Court of Human Rights has recognized in its rulings the authority of States to deprive individuals of the right to property provided the State strikes a fair balance between the interest of the community and the protection of an individual’s possessions. In the context of the extraction of energy resources, legitimate aims that justify deprivation in accordance with the ‘public interest’ are those which pursue either national economic development or environmental conservation. Within the Inter-American human rights protection system, the right to property has constituted the basis for the protection of access to the land and to natural resources of vulnerable groups, such as indigenous peoples, from development and extraction projects. According to the interpretation of the Inter-American Court of Human Rights, Article 21 of the American Convention imposes upon Inter-American States the obligation to respect and protect the access of indigenous peoples to land and natural resources as well as to undertake all positive measures that ensure the free exercise of the right of communal property. In the light of these interpretations, it may be stated that the right to property has an environmental dimension. Consequently, the environmental implications of an extraction project in the exercise of the right to property must be weighed against the public interest so that a fair balance between conservation, economic development and the respect of the right to property is achieved. Since the 1990s, environmental protection has been included within the scope of protection of the right to respect for private and family life, home and decisions embodied in Article 8 of the European Convention on Human Rights. According to European Court of Human Rights, environment directly influences the quality of private life and the quiet enjoyment of the amenities of individual’s home. Consequently, States have the duty to adopt measures to protect the environment. Relating to the environmental impacts resulted from industrial activities, States have a duty under Article 8 of the European Convention to undertake all necessary measures to regulate activities which directly result in environmental pollution and affect the enjoyment of privacy, family and home. The European Court emphasised in its respect that national authorities are in the best position to evaluate and control all technical and social aspects resulting from the implementation of development projects. With regard to the regulation of natural resource extraction, the European Court on Human Rights has dealt with the consequences of extraction of mineral resources in the private sphere in the cases of Taskin vs Turkey and Tatar vs Romania. Within the framework of Article 8, the European Court developed special measures to be followed by States when allowing the development of activities that could threaten the environment. These measures are the performance of EIAs, access to information

364

Conclusion

relating to risks and access to justice. In this context, the right to respect for private and family life, home and correspondence has been within Europe the basis for addressing environmental hazards that affect the of private life and the quiet enjoyment of the amenities of private homes. The right to life has also been used as legal basis to establish the link between environment and human rights. This right is at the top of the hierarchy of human rights guarantees since on the one hand it protects individuals from any arbitrary or intentional deprivation of life while on the other it ensures that individuals have access to minimum living conditions for a dignified existence. In the particular case of extraction activities, violations of the right to life can occur when state officials or third parties exercise acts of violence against people affected by such activities. Similarly, States can be held responsible for the death of an individual when state bodies have directly limited access of individuals to minimum requirements such as health care, nourishment or clean water. Environmental damage caused during extraction operations may prevent individuals from accessing minimum requirements for their survival and therefore jeopardize their right to life. In order to prevent risk to life arising from extractions, the State has the duty to control the development of the extraction activities and to provide technical measures and mechanisms to prevent and respond to injuries to life caused by such activities. The right to adequate living standards strongly depends on the environment. In fact, the realization of this right is linked to several elements such as food, adequate housing, health and water. In respect to food, it constitutes one of the crucial preconditions for the realization of this right. The right to food guarantees on the one hand a minimal supply of nourishment to prevent starvation. On the other hand, it ensures the availability of and access to food. The extraction of energy resources may have two negative effects on the effective realization of the right to food. First, environmental media, important for food production such as soil and water, can be polluted by extraction activities. Second, the necessity of generating alternative sources of energy can lead to a growing competition over the use of and access to land and natural resources for food. An illustration of these effects on the right to food is the production of feedstock for biofuels. Currently, bioenergy is mainly obtained from food and feed crops, such as maize, soya, palm oil or sugarcane. This has exerted enormous pressure on the environment and on the natural resources from which biomass is obtained. For instance, the growing cultivation of biofuels feedstock has given rise to the structural transformation of agriculture and land holdings so that the area for the production of food has been considerably reduced. Moreover, the production of agrofuels has caused serious impacts on the environment, such as soil erosion, depletion of water resources and the loss of biodiversity due to mono-crop agricultural systems, the use of pesticides and the

Conclusion

365

overexploitation of water resources. This illustration shows that environmental damage and the reduction of resources stocks caused by the production of bioenergy have a negative effect on the quality and quantity of resources necessary for the cultivation of food crops. The right to adequate housing is also an integral part of the right to adequate living standards. This right ensures everyone’s access to adequate housing. Among other protections, this right ensures that individuals are legally protected from forced eviction, harassment and other threats. Forced evictions can be defined as the forced removal of people from their homes. The development of energy or infrastructure projects and the environmental impacts rising from their implementation can give rise to arbitrary eviction or displacement of people from their land. Negative consequences of forced evictions on the life of project-affected people are, among others, the dislocation of people from their socio-cultural milieu and the breach of other human rights. Given the social, economic and psychological impacts of forced evictions, States are called to adopt measures to protect individuals from the arbitrary removal of people from their homes. In addition, international financial and developmental organizations have developed guidelines to prevent or avoid development-induced displacement. In this context, it is possible to establish that environmental hazards resulting from development activities have negative consequences on the realization of the right to adequate housing since such impacts prevent people from clean and healthy surroundings in which to develop their lives. The right to health is also a right whose realization depends on environmental conservation. Even though the European and Inter-American Convention on Human Rights do not embody the right to health within their provisions, the right has been included in their case law on the basis of other health-related rights. The right to health imposes on States the obligation to ensure access to adequate health services, goods and facilities as well as to create the factors and conditions that guarantee the highest possible standards of health for everyone in their jurisdiction. With respect to the environment, the effective realization of the right to health is closely linked to the quality of the environment. In effect, human health depends on functioning ecosystem services and access to environmental media and biodiversity. In the case of indigenous people, for example, access to natural resources is essential for the production of traditional medicine. In consequence, biodiversity damage in their territories has a negative influence on the exercise of traditional medicine and thus on their health. Facing environmental degradation arising from industrial and extraction activities, States must undertake measures to protect the health of individuals from pollution caused by such activities. A further link between health and environment relates to occupational health. In the extraction sectors workers’ health is exposed to occupational hazards and in several cases to poor environmental and

366

Conclusion

working conditions. Therefore, States are must guarantee a minimum regulatory framework for healthy working conditions and standards as well as to prevent environmental impact on work places. All this demonstrates the link between health and the quality of the environment and access to resources. Freshwater is an environmental medium essential for sustaining life. Unfortunately the quality and quantity of water has been jeopardized by several factors, among them the extraction of energy resources. The extraction of fossil fuels, the generation of hydropower and the cultivation of feedstock for biofuels have a direct influence on the quality and quantity of water resources. In recent decades, water has become one of the most important resources for the generation of renewable energy. Hydroelectric power, for instance, is the largest renewable source of energy. Nevertheless, the flooding resulting from dam construction has led to a degradation of riverine ecosystems and a scarcity of water in the downstream parts of rivers. Similarly, the production of feedstock for biofuels also has had a negative effect on the quality and quantity of water due to several factors such as the crop type, water use, irrigation methods, geographical water distribution, and fertilizers or pesticide usage. Facing this scenario, the human right to water has seen increasing support at international level. Although the right to water is not part of international human rights treaties, the existence of this right has been founded in several human rights in which water plays a substantial role for their realization such as the right to food, housing, health, and others. On the basis of this right, States and all stakeholders involved in energy resource extraction are called on to guarantee access of the population to water by avoiding or reducing the negative impacts – depletion and contamination – on existing water resources. The second part of the Chapter addressed procedural rights. While it is true that these rights were initially shaped within the framework of international environmental law to face the potential consequences of cross-border environmental problems, their further development has been consolidated in the area of human rights. In fact, procedural rights have been incorporated into several international human rights instruments and have served as legal basis for rulings issued by regional human rights courts. These rights are the right to participation, the right of access to justice and the EIAs. Participation is the inclusion of civil society in the policy-making process. In relation to the extraction of natural resources, the rights to participation ensure that stakeholders involved in extraction activities have access to information, participate in the decision-making process and in benefit sharing. The right of access to information guarantees within the Inter-American system that individuals have access to relevant information held by authorities or state bodies. It imposes on States the duty to regularly and systematically collect and disseminate information. In the context of the extraction of energy resources, the

Conclusion

367

right to access to information plays a crucial role since it enables stakeholders to assess the impacts of a development project while it also supports the participation of civil society in the decision-making process. The right to participate in decision-making process ensures that groups affected by such project are consulted and even entitled to give their consent when States plan the exploitation of resources in their territories. Particularly, international standards and good practices have included the right of the indigenous people to participate in rulings with the aim to protect their rights of access and their enjoyment of these resources. Finally, sharing benefits also constitutes a form of fair compensation when rights of individuals or groups to property and to access to natural resources have been limited by the implementation of development or investment projects. In addition to benefit sharing, States must guarantee the further use of land and resources through the rehabilitation of degraded and polluted land after expiry of a concession. International financial institutions have included benefit sharing as an important policy for development project loans. In the light of these considerations, the right to participation ensures that civil society and those affected take an active part in the design, implementation and management of development projects so that conservation of nature and the respect of human right will be further consolidated. Likewise, individuals require effective mechanisms and proceedings to redress and remedy any violation of law. In relation to environmental issues and the enforcement of human rights, judicial accountability plays a critical role towards the conservation of the environment and the realization of human rights. The right to access to justice and due process empower individuals to settle claims before independent and impartial courts to restore violated rights. In relation to the extraction of energy resources, States currently face challenges to establish the accountability and responsibility of Transnational Corporations (TNCs) in the energy sector for environmental damages and human rights violations due to the great economic and political power of these entities. These corporations can be only held accountable for violations of these rights or environmental damages at domestic level. However, this constitutes in some cases a great limitation since some countries lack of adequate legislation and mechanisms of judicial enforcement. In response to the difficulty to hold TNCs accountable for human rights violations and environmental damages, civil society and organizations have exerted pressure on corporations. As a result, TNCs in the energy sector have been obliged to develop self-regulation initiatives. Unfortunately, these initiatives lack enforcement mechanisms. In order to illustrate the difficulty of bringing to justice TCNs for environmental damages and for human rights violations deriving from environmental impact, the study analysed the case of TexPet and Chevron vs Lago Agrio. This case demonstrates that weak institutions and legislation as well as the political and economic power

368

Conclusion

of TNCs remain an obstacle to individuals seeking redress for environmental contamination. Finally, the study addressed the ‘Polluter Pays’ principle as an alternative to holding TNCs accountable for environmental damages. This principle attempts to have corporations assume the external costs associated with environmental damage derived from their operations so that the rational use of resources is ensured and distortions in international trade and investment are avoided. Finally, Environmental Impacts Assessments (EIAs) have become a crucial mechanism which ensures not only environmental conservation but also the realization of human rights since they assess and evaluate potential environmental hazards caused by development projects before their commencement. The use of EIAs is fundamental to the realization of other procedural rights such as access to information and the right to public participation in the decisionmaking process since it provides technical support about the possible consequence of a project. Furthermore, within the Inter-American system, ESIAs constitute a mechanism to protect indigenous peoples’ human rights, in particular their right to property. This analysis of substantive and procedural rights in the light of the extraction of energy resources evidenced on the one hand that the realization of human rights strongly depends on the quality of the environment and on access to natural resources. As a consequence, environmental impacts caused by extraction operations have a direct influence on elementary conditions for the realization of human rights. On the other hand, the analysis showed that procedural rights are safeguards which ensure that extraction activities are performed in accordance with environmental principles and human rights. On the basis of these findings, the study demonstrated the existence of a causal link between the realization of human rights and conservation of the environment. Furthermore, it established a complementary and reciprocal interaction between human rights and international environmental law. Both areas of international law have coalesced to conserve the environment and to respect human rights. International regional human rights instances have fallen back to environmental principles and rules to determine to what extent environmental damage gives rise to violations of human rights. Reciprocally, the conservation of nature has been acknowledged as an essential part of the fulfillment of human rights. This study illustrated the link between conservation and human rights in the light of the extraction of energy resources. It is undisputable that energy generation is crucial for human development and well-being. However, driving forces such as population growth, economic development and patrons of production and consumption have increased the demand for energy. As a result, ever more energy resources are required to cover the demand. The extraction of

Conclusion

369

oil resources, dam construction for hydropower generation and feedstock cultivation for biofuels have a negative impact on the environment of the areas in which the extraction of raw materials takes place. This environmental damage, in turn, makes it difficult to access essential natural resources for the survival and development of people living in the near of these areas. Facing this situation, the recognition of the link between human rights and the environment constitutes an important step for strengthening conservation and human rights. This study demonstrated the cause-effect relationship between environmental impact arising from extraction operations and the exercise of human rights. Furthermore, it showed that the great wealth of natural resources may lead to inefficient performance of functions by state bodies and institutions which in turn gives rise to corruption and poor human rights protection. In order to prevent environmental damage and human rights violations in the energy sector, this study aims to make all stakeholders involved aware of the impacts of different types of extraction projects on the environment, of recent legal developments in this area as well as of the tools and mechanisms needed to enforce the rights of affected individuals and communities. Since this study has focused on the attention on the first stage of energy generation, the extraction of energy resources, it is recommended to make similarly studies of other energy generation stages. As its concluding statement, it is necessary to strike a balance between energy generation for economic growth, conservation and the realization of human rights. Economic growth requires enormous amounts of energy for the production of goods and services. This, in turn, exerts pressure on energy resource stocks and the environment, thereby generating a situation of vulnerability. In this context, it is necessary to review current production and consumption patterns and encourage an economy based on the generation of sustainable renewable energy. Also, international investment agreements should include environmental and human rights clauses to avoid the impunity of stateowned and private extraction corporations. Measures such as the establishment of trust fund for environmental hazards and compromises over implementing environmentally friendly technologies, constitute appropriate steps towards the realization of human rights and the conservation of nature in the extraction sector.

References

Alcamo Joseph and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment (1st edition, Millennium Ecosystem Assessment and Island Press 2003) quotation: Joseph Alcamo and others, Ecosystem Assessments and Human Well-Being: A Framework for Assessment Allen Richard G and others, ‘Crop evapotranspiration – Guidelines for computing crop water requirements’ (1998) FAO Irrigation and drainage paper 56 accessed 2 June 2011 Alli Benjamin O, Fundamental principles of occupational health and safety (1st edition, International Labour Organization 2001) quotation: Alli, Fundamental principles of occupational health and safety Amnist†a Internacional and others: ‘Seminario y Conferencias: ‘Relaciones Econûmicas & Derechos Humanos. Estado, comercio y empresas: ¿juego de roles en el escenario global?’ (2009) accessed 4 August 2013 Anaya James S, Indigenous Peoples in International Law (2nd edition, Oxford University Press 2004) quotation: Anaya, Indigenous Peoples in International Law Anton Donald K and Shelton Dinah L, Environmental Protection and Human Rights (1st edition, Cambrige University Press 2011) quotation: Anton and Shelton, Environmental Protection and Human Rights Aznares Juan, ‘Ecuador vota la destituciûn de Bucaram’ El Pa†s (Madrid, 25 de May 1997) accessed 20 Mai 2013 Barret Paul, ‘Chevron Fails to Squelch $19 Billion Ecuador Verdict’, Bloomberg Businessweek (9 October 2012) Birnie Patricia and others, International Law & the Environment (3rd edition, Oxford University Press 2009) quotation: Birney and others, International law & Environment Beyerlin Ulrich, ‘Umweltschutz und Menschenrechte’ (2005) vol 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 525 – 542 Beyerlin Ulrich und Marauhn Thilo, International Environmental Law, (1st edition, Hart 2011) quotation: Beyerlin und Marauhn, International Environmental Law Boisson de Chazournes Laurence, Fresh Water in International Law, (1st edition, Oxford University Press 2013) quotation: Boisson de Chazournes Laurence, Fresh Water in International Law

372

References

Bosselmann Klaus, ‘Human Rights and the Environment: Redefining Fundamental Principles?’ (2010) accessed 23 June 2011 Bosselmann Klaus, When Two Worlds Collide: Society and Ecology (1st edition, RSVP Pub. Co. Ltd 1995) quotation: Bosselmann, When Two Worlds Collide: Society and Ecology Bosshard Peter, ‘The Dam Industry, the World Commission of Dams and HSAF Process’ (2010) vol 3(2) Water Alternatives 58 – 70 Boyle Alan ‘Globalizing Environmental Liability : The Interplay of National and International Law’ (2005) vol 17 No 1 Journal of Environmental Law 3 – 26 Boyle Alan, ‘Human Rights and the Environment: A Reassessment’ (2008) vol 18 Fordham Environmental Law Review 471 – 511 Brand Ronald A. and Jablonski Scott R., Forum Non Conveniens: History, Global Practice, and Future Under the Hague Convention on Choice of Court Agreements (1st edition, Oxford University Press 2007) quotation: Brand and Jablonski, Forum Non Conveniens (2007) Bradbrook Adrian J and Wahnschafft Ralph D, ‘The contribution of international law to achieving global sustainable energy production and consumption’ in Adrian J Bradbrook and Richard L Ottinger (eds), Energy Law and Sustainable Development (1st edition, IUCN 2003) quotation: Bradbrook and Wahnschafft, ‘The contribution of international law to achieving global sustainable energy production and consumption’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development Bringezu Stefan and others, ‘Rational for and Interpretation of Economy-Wide Material Flow Analysis and Derived Indicators’ (2003) vol 7 Journal of Industrial Ecology 43 – 64 Cahill Ripley Amanda, The Human Right to Water and Its Application in the Occupied Palestinian Territories, (1st edition, Routledge 2011), quotation: Cahill Ripley Amanda, The Human Right to Water and Its Application in the Occupied Palestinian Territories Carter M R, ‘Designing land and property rights reform for poverty alleviation and food security’ (2003) vol 2003/2 Land Reform, Land Settlement and Cooperatives 44 – 57 Cassese Antonio, International Law (2nd edition, Oxford University Press 2005) quotation: Cassese, International Law CERD, Concluding observations of the Committee on the Elimination of Racial Discrimination: Ecuador (UN doc CERD/C/62/CO/2, 2003) quotation: CERD, Concluding observations of the Committee on the Elimination of Racial Discrimination: Ecuador CERD, Concluding observations of the Committee on the Elimination of Racial Discrimination: Suriname (UN doc CERD/C/64/CO/9, 2004) quotation: CERD, Concluding observations of the Committee on the Elimination of Racial Discrimination: Suriname CESCR, Concluding observations of the Committee on Economic, Social and Cultural Rights: Ecuador (UN Doc E/C.12/1/Add.100, 2004) quotation: CESCR, Concluding observations of the Committee on Economic, Social and Cultural Rights: Ecuador Chevron, ‘Chevron Statement Responding to the Government of Ecuador’s Offer to Mediate in Ongoing Trial’ accessed 31 May 2013 Chevron, Form 10-K (31 December 2011) accessed 07 June 2013

References

373

COHRE and others, Manual on the Right to Water and Sanitation (1st edition, COHRE 2007) quotation: COHRE and others, Manual on the Right to Water and Sanitation Commission of Sustainable Development, ‘Report on the Ninth session’ E/CN.17/2001/19 (2001) Commission of the European Communities, Council Regulation (EEC) No 1872/84 on Action by the Community Relating to the Environment, OJL 176 (1984) Commission of the European Communities, ‘Towards a Thematic Strategy on the sustainable use of natural resources’ (Communications) COM (2003) 572 final Commission on Environmental Law of IUCN, ‘Draft International Covenant on Environment and Development’ (Environmental Policy and Law Paper No.31 Rev.2) Commission on Human Settlements, ‘Global Strategy for Shelter to the Year 2000’ A/43/8/ Add.1 (1988) Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world: Report of the Secretary-General (UN Doc E/CN.17/1997/9, 1997) quotation: Commission on Sustainable Development, Comprehensive assessment of the freshwater resources of the world Committee on Convention No. 107, Record of Proceedings of the 76th Session of the International Labour Conference (1989) Constanza Robert and others, ‘The value of the world’s ecosystem services and natural capital’ (1997) vol 387 Nature 253 – 260 Cotula Lorenzo, The Right to Food and Access to Natural Resources: Using Human Rights Arguments and Mechanisms to Improve Resource Access for the Rural Poor (1st, FAO 2008) quotation: Cotula, The Right to Food and Access to Natural Resources Cotula Lorenzo and others, Land grab or development opportunity? Agricultural investment and international land deals in Africa (1st, FAO, IIED and IFAD 2009) quotation: Cotula and others, Land grab or development opportunity? Council of Europe, Manual on human rights and the environment: Principles emerging from the case-law of the European Court of Human Rights (1st, Council of Europe Publishing 2006) quotation: Council of Europe, Manual on human rights and the environment Council of the European Union, ‘EU Parliament approves stringent oil and gas drilling legislation’ (2013) 10588/13 PRESSE 245 Cruz Luisa, ‘Responsible governance of land tenure: an essential factor for the realization of the right to food’ (2010) Land Tenure Working Paper 15 Cullet Philippe, ‘Definition of an Environmental Right in a Human Right Context’ (1995) vol 13 Netherlands Quarterly of Human Rights 25 – 40 Daes Erica-Irene, Review of Reports, Studies and other Documentation for the Preparatory Committee and the World Conference (UN Doc A/CONF.189/PC.3/4, 2001), quotation: Daes, Review of Reports, Studies and other Documentation for the Preparatory Committee and the World Conference Daes Erica-Irene, Indigenous peoples’ permanent sovereignty over natural resources: Final report of the Special Rapporteur (UN Doc E/CN.4/Sub.2/2004/30, 2004), quotation: Daes, Indigenous peoples’ permanent sovereignty over natural resources Daily Gretchen, ‘Introduction: What are ecosystem services?’ in Daily Gretchen (ed), Nature’s Services: Societal Dependence On Natural Ecosystems (1st edition, Island Press

374

References

1997) quotation: Daily, ‘Introduction: What are ecosystem services?’ in Daily (ed), Nature’s Services: Societal Dependence On Natural Ecosystems De Albuquerque Catarina, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation (UN Doc A/HCR/10/ 6, 2009) quotation: De Albuquerque, Report of the independent expert on the issue of human rights obligations related to access to safe drinking water and sanitation De Andrade Cunha Denise and Valle Ferreira Leonardo, ‘Impacts of the Belo Monte hydroelectric dam construction on pioneer vegetation formations along the Xingu River, Par‚ State, Brazil’ (2012) vol 35 (2) Brazilian Journal of Botany 159 – 167 De Fraiture Charlotte and others, ‘Biofuels and implications for agricultural water use: blue impacts of green energy’ (2008) Water Policy 10 Supplement 1 De Schutter Olivier, Building resilience: a human rights framework for world food and nutrition security (UN Doc A/HRC/9/23, 2008), quotation: De Schutter, Building resilience: a human rights framework for world food and nutrition security Digital Media Law Project, ‘Piercing the Corporate Veil’ accessed 08 June 2013 Dolzer Rudolf and Thesing Josef, Protecting Our Environment (1st edition, Konrad Adenauer-Stiftung 2000) quotation: Dolzer and Thesing, Protecting Our Environment Dolzer Rudolf, Principles of International Investment Law (1st edition, Oxford University Press 2008) quotation: Dolzer, Principles of International Investment Law Doyle Cathal M., Indigenous Peoples’ Issues & Participation at the UN Forum on Business and Human Rights: Progress to date and Potential for the Future (European Network on Indigenous Peoples, 2014), quotation: Doyle Cathal M., Indigenous Peoples’ Issues & Participation at the UN Forum on Business and Human Rights Dubreuil C¦line, The Right to Water : from concept to implementation (WWC 2006) quotation: Dubreuil, The Right to Water Dworkin Ronald D, Talking Rights Seriously (1st edition, Harvard University Press 1978) quotation: Dworkin, Talking Rights Seriously Edmonds JA and others, Global Energy Technologies Strategies: Addressing Climate Change (1st edition, Battetlle Memorial Institute 2007) quotation: Edmonds and others, Global Energy Technologies Strategies: Addressing Climate Change Eide Asbjørn, The right to food and the impact of liquid fuels (FAO 2008) quotation: Eide, The right to food and the impact of liquid fuels Engbruch Katharina, Das Menschenrecht auf einen angemessenen Lebensstandard: Ernährung, Wasser, Bekleidung, Unterbringung und Energie als Elemente des Art. 11 (1) IPWSKR (1st edition, Peter Lang 2007) quotation: Engbruch, Das Menschenrecht auf einen angemessenen Lebensstandard Engelhaupt Erika, ‘Biofuling: Water Problems’ (2007) vol 41 issue 22 Environmental Science & Technology Epiney and Scheyli, Strukturprinzipien des Umweltvölkerrechts (1st edition, Nomos Verlagsgesellschaft 1998) quotation: Epiney and Scheyli, Strukturprinzipien Epiney Astrid and Scheyli Martin, Umweltvölkerrecht (1st edition, Stämpfli Verlag 2000) quotation: Epiney and Scheyli, Umweltvölerrecht Erdelen W, ‘The other crisis’ (2009) vol 7 Natural Science Quarterly Newsletter European Bank for Reconstruction and Development, Environmental and Social Policy, PR 7: Indigenous Peoples (2008)

References

375

European Environmental Agency, EEA Signals 2004 (2004) quotation: European Environmental Agency, EEA Signals 2004 European Environmental Agency, Sustainable use and management of natural Resources, Copenhagen (2005) quotation: EEA, Sustainable use and management of natural resources. European Parliament and Council, Council Directive 2009/28/EC of 23 April 2009 promoting the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC (2009) OJ L140/16 FAO, Agriculture, food and water (FAO 2003) quotation: FAO, Agriculture, food and water FAO Forestry Department, ‘Unified Bioenergy Terminology UBT’ (2004) accessed 20 May 2011 Fontevecchia Agustino, ‘Chevron’s Argentine Shale Dream: Supreme Court Decision Paves Way For YPF Deal To Develop Vaca Muerta’, Forbes (6 May 2013) Gao Zhiguo, ‘Environmental Regulation of Oil and Gas in the Twentieth Century and Beyond: An introduction and Overview’ in Gao Zhiguo, Environmental Regulation of Oil and Gas (1st edition, Kluwer Law International 1998) quotation: Gao, ‘Environmental Regulation of Oil and Gas in the Twentieth Century and Beyond: An introduction and Overview’ in Gao, Environmental Regulation of Oil and Gas Gilpin Alan, Environmental Impact Assessments: Cutting Edges for the Twenty First Century (4th edition, Cambridge University Press 2000) quotation: Gilpin, Environmental Impact Assessments Golay Christophe, The Right to Food and Access to Justice: Examples at the national, regional, international levels (1st, FAO 2009) quotation: Golay, The Right to Food and Access to Justice Golay Christophe, The Right to Water (CETIM, Critical Report No 6, 2009) Graf Vitzthum Wolfgang, ‘Begriffe, Geschichte und Rechtsquelle des Völkerrechts’ in Wolfgang Graf Vitzthum (ed), Völkerrecht (5th edition, Gruyter 2010) quotation: Vitzthum, ‘Begriffe, Geschichte und Rechtsquelle des Völkerrechts’ in Vitzthum (ed), Völkerrecht Golay Christophe and Özdem Melik, The right to housing: A fundamental human right affirmed by the United Nations and recognized in regional treaties and numerous national constitutions (1st, CETIM 2009) quotation: Golay and Özdem, The right to housing Grover Anand, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (UN Doc A/HRC/20/15, 2012), quotation: Grover, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health Guiss¦ El Hadji, Relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation (UN Doc E/CN.4/Sub.2/2004/20, 2004), quotation: Guiss¦ El Hadji, Relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation Handl Günther, ‘Human Rights and the Protection of the Environment’ in Eide Asbjørn, Krause Catarina and Rosas Allan (eds), Economic, Social and Cultural Rights: A Textbook (2nd Edition, Martinus Nijhoff Publishers 2001) quotation: Tobes, ‘Human Rights

376

References

and the Protection of the Environment’ in Eide, Krause, and Rosas (eds), Economic, Social and Cultural Rights: A Textbook HBT AGRA Limited, ‘Final Assessment Criteria for an Environmental Evaluation of the Petroecuador Consortium Oil Fields’ (unpublished document, 1992). HBT AGRA Limited, ‘Environmental Assessment of the PetroEcuador-Texaco Consortium Oil Fields, Vol 1: Environmental Audit Report’ (draft audit report, 1993) Herdegen Matthias, Internationales Wirtschaftrecht (15th edition, Beck Juristischer Verlag 2013) quotation: Herdegen, Internationales Wirtschaftrecht Herdegen Matthias, Völkerrecht (13th edition, Beck Juristischer Verlag 2014) quotation: Herdegen, Völkerrecht Higgins Rosalyne, ‘Natural Resources in the Case Law of the International Court’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development: past achievements and future challenges (1st edition, Oxford University Press 1999) quotation: Higgins ‘Natural Resources in the Case Law of the International Court’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development Hodas David R, ‘Energy, climate change and sustainable development’ in Adrian J Bradbrook and Richard L Ottinger (eds), Energy Law and Sustainable Development (1st edition, IUCN 2003) quotation: Hodas ‘Energy, climate change and sustainable development’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development Hodas David R, ‘International Law and Sustainable Energy : A Portrait of Failure’ (2010) 10 – 21 Widener Law School Legal Research Paper accessed 14 July 2011 Honor¦ Anthony Maurice, ‘Ownership’ in Anthony Gordon Guest, Oxford essays in jurisprudence: A collaborative work (1st edition, Oxford University Press 1961) quotation: Honor¦, ‘Ownership’ in Guest, Oxford essays in jurisprudence: A collaborative work Horn Laura, ‘Globalization, Sustainable Development and the Common Concern of Human Kind’ (2007) vol 7 Macquarie Law Journal Howard Guy and Bartram Jamie, Domestic Water Quantity, Service Level and Health (WHO 2003) quotation: Howard and Bartram, Domestic Water Quantity, Service Level and Health (WHO 2003) Human Rights Committee, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments (UN doc A/HRC/6/3, 2007) quotation: HRC, Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: Canada’ CCPR/C/79/Add.105 (1999) Human Rights Committee, ‘Concluding Observations of the Human Rights Committee: Romania.’ CCPR/C/79/Add.111 (1999) Human Rights Council, Business and Human Rights: Towards operationalizing the “protect, respect and remedy” framework (UN doc A/HRC/11/13, 2009) quotation: Human

References

377

Rights Council, Business and Human Rights: Towards operationalizing the “protect, respect and remedy” framework Hunt Paul, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health (UN Doc E/CN.4/2003/58, 2003), quotation: Hunt Paul, The right of everyone to the enjoyment of the highest attainable standard of physical and mental health Inter-American Court of Human Rights, ‘Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the American Convention on Human Rights)’, Advisory Opinion OC-9/87 (1987) Inter-American Court of Human Rights, ‘Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights’, Advisory Opinion OC-10/89 (1989) Inter-American Court of Human Rights, ‘The Right to Information on Consular Assistance. In the framework of the Guarantees of the due Process of Law’, Advisory Opinion OC-16/99 (1999) Inter-American Development Bank, Operational Policy on Indigenous Peoples and Strategy for Indigenous Development (IND Publications, 2006) quotation: Inter-American Development Bank, Operational Policy on Indigenous Peoples and Strategy for Indigenous Development Inter-American Commission on Human Rights, ‘Report on the Situation of Human Rights in Ecuador’ OEA/Ser.L/V/II.96 (1997) Inter-American Commission on Human Rights, ‘Third Report on the Situation of Human Rights in Paraguay’ OEA/Ser.L/V/II.110 (2001) Inter-American Commission on Human Rights, ‘Indigenous and tribal peoples’ rights over their ancestral lands and natural resources: Norms and Jurisprudence of the InterAmerican Human Rights System’ OEA/Ser.L/V/II (2009) Inter-American Commission on Human Rights, ‘Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia’ OEA/Ser.L/V/II Doc 34 (2007) Inter-American Commission on Human Rights, ‘Democracy and Human Rights in Venezuela’ OEA/Ser.L/V/II Doc 54 (2009) International Law Commission, ‘Report of the International Law Commission’ (UN Doc A/59/10, 2004) International Court of Justice, ‘Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970)’, Advisory Opinion, ICJ Reports of 21 June 1971 International Energy Agency, ‘World Energy Outlook 2004’ (OECD/EIA, 2004) accessed 20 May 2011 International Energy Agency, World Energy Outlook 2006 (IEA, 2006) quotation: International Energy Agency, World Energy Outlook 2006 International Energy Agency, World Energy Outlook 2007: China and India Insights (IEA, 2007) quotation: International Energy Agency, World Energy Outlook 2007: China and India Insights International Finance Corporation, IFC Performance Standards on Environmental and Social Sustainability (IFC, 2012) International Labor Organization, Health and life at work: A basic human right (1st

378

References

edition, International Labour Organization 2009), quotation: International Labor Organization, Health and life at work: A basic human right International Monetary Fund, World Economic Outlook 2008 (2008) IUCN and others, World Conservation Strategy : Living Resource, Conservation for Sustainable Development (IUCN, 1980) quotation: IUCN UNEP, and WWF, World Conservation Strategy IUCN and others, Caring for the Earth: A Strategy for Sustainable Living (IUCN, 1991) quotation: IUCN and others, Caring for the Earth: A Strategy for Sustainable Living Joseph Sarah and others, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd, Oxford University Press 2004) quotation: Joseph and others, The International Covenant on Civil and Political Rights Kälin Walter and Künzli Jörg, Universeller Menschenrechtsschutz (2nd edition, Nomos 2008) quotation: Kälin and Künzli, Universeller Menschenrechtsschutz Kass Stephen, ‘Lessons From Lago Agrio Environmental Pollution Case’ (2011) New York Law Journal Kimerling Judith, ‘The Environmental Audit of Texaco’s Amazon Oil Fields: Environmental Justice or Business as Usual?’ (1994) vol 7 Harvard Human Rights Journal 199 Kimerling Judith, ‘Indigenous Peoples and the Oil Frontier in Amazonia: The Case of Ecuador, ChevronTexaco and Aguinda v. Texaco’ (2006) vol 38 New York University Journal of International Law and Politics 413 – 664 Kimerling Judith, ‘Oil, Contact, and Conservation in the Amazon: Indigenous Huaorani, Chevron, and Yasuni’ (2013) vol 24 Colorado Journal of International Environmental Law and Policy 43 – 115 Kindhauser Mary Kay, ‘Neglected diseases that disable millions: Ambitious initiatives tackle problems once though intractable’ in Kindhauser Mary Kay (ed), Global Defense against the Infectious Disease Threat (1st edition, WHO 2003) quotation: Kindhauser, ‘Neglected diseases that disable millions: Ambitious initiatives tackle problems once though intractable’ in Kindhauser (ed), Global Defense against the Infectious Disease Threat Kothari Millon, Report of the special Rapporteur on adequate housing as a component of the right to an adequate standard of living (UN Doc E/CN.4/2001/51, 2001), quotation: Kothari, Report on adequate housing as a component of the right to an adequate standard of living Kothari Millon, Report of the special Rapporteur on adequate housing as a component of the right to an adequate standard of living (UN Doc E/CN.4/Sub.4/2004/48, 2004), quotation: Kothari Millon, Report on adequate housing as a component of the right to an adequate standard of living Kothari Millon, Report of the special Rapporteur on adequate housing as a component of the right to an adequate standard of living (UN Doc A/HRC/4/18, 2007), quotation: Kothari Millon, Report on adequate housing as a component of the right to an adequate standard of living Kothari Millon, ‘United Nations Basic Principles and Guidelines on Development based Evictions and Displacement’ (Workshop on Shelter Security and Social Protection for the Urban Poor and the Migrants in Asia, At Ahmedabad – India, 11 – 13 February 2009) Kravchenko Svitlana, ‘Environment’ in Encyclopedia of Human Rights II (1st edition,

References

379

Oxford University Press 2009) quotation: Kravchenko, ‘Environment’ in Encyclopedia of Human Rights II Kriger Natalia, ‘Gewinnung natürlicher Ressourcen in Konfliktsituationen: Bestandaufnahme zu den Positionen und Strategien relevanter EZ-Akteure’, (BICC, 2007) Lang Weaver Jacqueline, ‘Sustainable development in the petroleum sector’ in Adrian J Bradbrook and Richard L Ottinger (eds), Energy Law and Sustainable Development (1st edition, IUCN 2003) quotation: Lang Weaver, ‘Sustainable development in the petroleum sector’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development Laskowski Silke, Das Menschenrecht auf Wasser, (1st edition, Mohr Siebeck 2010) quotation: Laskowski Silke, Das Menschenrecht auf Wasser Leckie Scott, ‘The Right to Housing’ in Eide Asbjørn and others (eds), Economic, Social and Cultural Rights: A Textbook (1st edition, Martinus Nijhoff Publishers 1995) quotation: Leckie, ‘The Right to Housing’ in Eide and others (eds), Economic, Social and Cultural Rights: A Textbook L¦on Moreta Mar†a A., ‘Biofuels – A Threat to the Environment and Human Rights? An Analysis of the impact of the production of feedstock for agrofuels on the rights to water, land and food’ (2011) vol 4 issue 1 European Journal of Legal Studies 102 – 120 Lesage Michel, ‘Work-related diseases and occupational diseases: The ILO international list’ in ILO Encyclopaedia of Occupational Health and Safety (4th edition, International Labour Organization 1998) quotation: Lesage Michel, ‘Work-related diseases and occupational diseases: The ILO international list’ in ILO Encyclopaedia of Occupational Health and Safety Ludescher Monika, Menschenrechte und indigene Völker (1st edition, Peter Lang 2004) quotation: Ludescher, Menschenrechte und indigene Völker Lyster Rosemary and Bradbrook Adrian, Energy Law and the Environment (1st edition, Cambridge University Press 2006) quotation: Lyster and Bradbrook, Energy Law and the Environment Mak Kui-Nang (Peter) and Soltau Friedrich, ‘Policy Options’ in Adrian J Bradbrook and others (eds), The Law of Energy for Sustainable Development (1st edition, Cambrige University Press 2005) quotation: Mak and Soltau, ‘Policy Options’ in Adrian J Bradbrook and others (eds), The Law of Energy for Sustainable Development Marks Stephen P, ‘Health from a Human Rights Perspective’ (2003) accessed 16 August 2011 Mart†nez Cobo Jos¦ R, Study of the problem of discrimination against indigenous populations. Volumen V: Conclusions, proposals and recommendations (UN Doc E/CN.4/ Sub.2/1986/7/Add.4, 1987) quotation: Mart†nez Cobo, Study of the problem of discrimination against indigenous populations Mauremootoo John, Biofuels and Invasive Species: Exploring the links between biofuels production systems and invasive species (IUCN 2009) quotation: Mauremootoo, Biofuels and Invasive Species: Exploring the links between biofuels production systems and invasive species McHarg Aileen and others, ‘Property and the Law in Energy and Natural Resources’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (1st edition, Oxford University Press 2010) quotation: McHarg and others, ‘Property

380

References

and the Law in Energy and Natural Resources’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources McNeely Jeffrey A, ‘Energy and biodiversity : Understanding complex relationships’ in Adrian J Bradbrook and Richard L Ottinger (eds), Energy Law and Sustainable Development (1st edition, IUCN 2003) quotation: McNeely, ‘Energy and biodiversity : Understanding complex relationships’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development McNeely Jeffrey A and Mainka Susan A, Conservation for a New Era (1st edition, IUCN 2009) quotation: McNeely and Mainka, Conservation for a New Era Meadowcrof James, ‘Climate Change Governance’ (World Bank WPS4941, 2009) accessed 24 May 2011 Mignorance Fidel, The Flow of Palm Oil Colombian-Belgium/Europe: A Study from a Human Rights Perspective (HREV 2007) quotation: Mignorance, The Flow of Palm Oil Colombian-Belgium/Europe: A Study from a Human Rights Perspective Mitchell Donald, ‘A Note on Rising Food Prices’ (2008) World Bank, Policy Research Working Paper 4682 Mittal Anuradha, ‘The 2008 Food Price Crisis: Rethinking Food Security Policies’ (2009) G-24 Discussion Paper Series No 56 Murray Tamsyn P and S‚nchez-Choy Jos¦, ‘Health, biodiversity, and natural resource use on the Amazon frontier : an ecosystem approach’ (2001) vol 17 Cad Safflde Publica 181 – 191 The National Research Council, ‘Water Implications of Biofuels Production in the United States’ (Report in Brief, 2007) Nowak Manfred, Einführung in das internationale Menschenrechtssystem (1st edition, Neuer Wissenschaftlicher Verlag 2002) quotation: Nowak, Einführung in das internationale Menschenrechtssystem Nowak Manfred, U.N. Covenant on Civil and Political Rights CCPR Commentary (2nd edition, Norbert Paul Engel Verlag 2005) quotation: Nowak, CCPR Commentary OECD, ‘Recommendation of the Council on Guiding Principles concerning International Economic Aspects of Environmental Policies’ (Doc C (72)128, 1972) OECD, ‘Recommendation of the Council on the Implementation of the Polluter-Pays Principle’ (Doc C(74)223, 1974) OECD, OECD Guidelines for Multinational Enterprises (OECD, 2011 Edition) OHCHR, The right to adequate housing (1994) Fact Sheet No 21 / Rev 1 OHCHR, Forced Evictions and Human Rights (1996) Fact Sheet No 25 OHCHR, The right to health (2008) Fact Sheet No 31 OHCHR, United Nations Commentary and Guidelines on Eviction and Resettlement (2009) OHCHR and WHO, The right to water (2010) Fact Sheet No 35 Omorogbe Yinka and Oniemola Peter, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (1st edition, Oxford University Press 2010) quotation: Omorogbe and Oniemola, ‘Property Rights in Oil and Gas under Dominial Regimes’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources Ottinger Richard L and Zalcman Fred, ‘Legal measures to promote renewable and energy efficiency resources’ in Adrian J Bradbrook and Richard L Ottinger (eds), Energy Law

References

381

and Sustainable Development (1st edition, IUCN 2003) quotation: Ottinger and Zalcman, ‘Legal measures to promote renewable and energy efficiency resources’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development Ottinger Richard L, ‘Legal Framework for Energy for Sustainable Development’ in Adrian J Bradbrook and others (eds), The Law of Energy for Sustainable Development (1st edition, Cambrige University Press 2005) quotation: Ottinger, ‘Legal Framework for Energy for Sustainable Development’ in Adrian J Bradbrook and others (eds), The Law of Energy for Sustainable Development Ottinger Richard L, ‘Biofuels – Potential, Problems & Solutions’ (2007) accessed 20 May 2011 Özdem Melik, Transnational Corporations and Human Rights (1st edition, CETIM 2005) quotation: Özdem, Transnational Corporations and Human Rights Özdem Melik, The right to health: A fundamental human right affirmed by the United Nations and recognized in regional treaties and numerous national constitutions (1st, CETIM 2006) quotation: Özdem, The right to health Paglione Giulia, ‘Right to Housing and Shelter’ in Encyclopedia of Human Rights I (1st edition, Oxford University Press 2009) quotation: Paglione, ‘Right to Housing and Shelter’ in Encyclopedia of Human Rights I Pastowski Andreas, Reinhard Guido and Kadelbach Stephan, Sozial-ökologische Bewertung der stationären energetischen Nutzung von importierten Biokraftstoffen am Beispiel von Palmöl (1st edition, Wuppertal Institut für Klima, Umwelt, Energie GmbH 2007), quotation: Pastowski, Reinhard and Kadelbach, Sozial-ökologische Bewertung der stationären energetischen Nutzung von importierten Biokraftstoffen am Beispiel von Palmöl Patel Suraj, ‘Delayed Justice: A Case of Study of Texaco and the Republic of Ecuador’s Operations, Harms, and Possible Redress in the Ecuadorian Amazon’ (2012) accessed 15 April 2013 Patterson Dennis (ed), Philosophy of law and legal theory : an anthology (1st edition, Wiley-Blackwell 2003) quotation: Patterson (ed), Philosophy of law and legal theory Permanent Forum on Indigenous Issues, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples (UN doc E/C.19/2005/3, 2005) quotation: Permanent Forum on Indigenous Issues, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples Quan Julian, ‘Land access in the 21st century : issues, trends, linkages and policy options’ (2006) Living Support Program Working Paper 24 Reyes Francisco, A New Policy Agenda for Latin American Company Law : Reshaping the Closely-Held Entity Landscape (Tilburg University, 2011) quotation: Reyes, A New Policy Agenda for Latin American Company Law Rodgers Kalas Peggy, ‘The Implication of Jota v Texaco and the Accountability of Transnational Corporation’ (2000) vol 12 Peace International Law Review 17 – 31 Ronne Anita, ‘Public and Private Rights to Natural Resources and Differences in their Protection?’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (1st edition, Oxford University Press 2010) quotation: Ronne,

382

References

‘Public and Private Rights to Natural Resources and Differences in their Protection?’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources Ruggie John, ‘Business and Human Rights: The Evolving International Agenda’ (2007) Corporate Social Responsibility Initiative, Working Paper No 38 accessed 24 July 2013 Ruggie John, ‘State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries’ (UN Doc A/HCR/4/35/Add.1, 2007) quotation: Ruggie, ‘State responsibilities to regulate and adjudicate corporate activities under the United Nations core human rights treaties: an overview of treaty body commentaries’ Ruggie John, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ (UN Doc A/HRC/8/5, 2008), quotation: Ruggie, ‘Protect, Respect and Remedy : a Framework for Business and Human Rights’ Saladin Claudia, ‘Public Participation in the Era of Globalization’ in Picolotti Romina and Taillant Jorge Daniel (eds), Linking Human Rights and the Environment (1st edition, The University of Arizona Press 2003) quotation: Saladin, ‘Public Participation in the Era of Globalization’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment Salman M.A. Salman and McInerney-Lankford Siobh‚n, The Human Right to Water : Legal and Policy Dimensions (World Bank, 2004) quotation: Salman and McInerney-Lankford, The Human Right to Water : Legal and Policy Dimensions Sands Philippe, Principles of International Environmental Law (2nd edition, Cambridge University Press 2003) quotation: Sand, Principles of International Environmental Law Scanlon John, Cassar Angela and Nemmes No¦mi, ‘Water as a Human Right?’ (2006) IUCN Environmental Policy and Law Pager No 51 Schilling Theodor, Internationaler Menschenrechtsschutz (2nd edition, Mohr Siebeck 2010) quotation: Schilling, Internationaler Menschenrechtsschutz Schrijver Nicolas Jan, Sovereignty over natural resources: Balancing rights and duties in and interdependent world (University of Groningen 2005) quotation: Schrijver, Sovereignty over natural resources Secretariat of the Convention on Biological Diversity, Global Biodiversity Outlook 3 (1st edition, Progress Press Ltd 2010) quotation: Secretariat of the Convention on Biological Diversity, Global Biodiversity Outlook 3 Shelton Dinah, ‘Human Rights, Health & Environmental Protection: Linkages in Law & Practices’: A Background Paper for the World Health Organization’ (2002) Health and Human Rights Working Paper Series No.1 Shelton Dinah, ‘The Environmental Jurisprudence of International Human Rights Tribunals’ in Picolotti Romina and Taillant Jorge Daniel (eds), Linking Human Rights and the Environment (1st edition, The University of Arizona Press 2003) quotation: Shelton, ‘The Environmental Jurisprudence of International Human Rights Tribunals’ in Picolotti and Taillant (eds), Linking Human Rights and the Environment Shelton Dinah, ‘A Right-based Approach to Conservation’ in Greiber Thomas (ed), Conservation with Justice: A Right-based Approach (1st edition, IUCN 2009) quotation: Shelton, ‘A Right-based Approach to Conservation’ in Greiber (ed), Conservation with Justice: A Right-based Approach

References

383

Sieghart Paul, International Law of Human Rights (1st edition, Clarendon Press 1983) quotation: Sieghart, International Law of Human Rights Smith Rhona, Textbook on International Human Rights (5th edition, Oxford University Press 2012) quotation: Smith, International Human Rights Stavenhagen Rodolfo, Human rights and indigenous issues: Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (UN Doc E/CN.4/2003/90, 2003), quotation: Stavenhagen, Human rights and indigenous issues Stavenhagen Rodolfo, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (UN Doc A/HRC/6/15, 2007), quotation: Stavenhagen, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people Stein Paul, ‘The Role of Judiciary’ in Adrian J Bradbrook and others (eds), The Law of Energy for Sustainable Development (1st edition, Cambrige University Press 2005) quotation: Stein, ‘The Role of Judiciary’ in Adrian J Bradbrook and others (eds), The Law of Energy for Sustainable Development Steiner Achim and Hass Lawrence J. M., ‘The Report of the World Commission on Dams: Some implications for energy’ in Adrian J Bradbrook and Richard L Ottinger (eds), Energy Law and Sustainable Development (1st edition, IUCN 2003) quotation: Steiner and Hass, ‘The Report of the World Commission on Dams: Some implications for energy’ in Bradbrook and Ottinger (eds), Energy Law and Sustainable Development Steiner Henry, ‘International Protection of Human Rights’ in Malcom D Evans (ed), International Law (2nd edition, Oxford University Press 2006) quotation: Steiner, ‘International Protection of Human Rights’ in Evans (ed), International Law Tellechea Bergman Eduardo, ‘Dimensiûn judicial del caso privado internacional. An‚lisis en especial de la cooperaciûn judicial internacional de mero tr‚mite, probatoria y cautelar en el ‚mbito interamericano y del MERCOSUR’ in XXXIV Curso de Derecho Internacional “Aspectos Jur†dicos del desarrollo regional” (OAS 2007) quotation: Tellechea Bergman, ‘Dimensiûn judicial del caso privado internacional in XXXIV Curso de Derecho Internacional Thiele Bret, ‘Housing Rights: Norms and Implementation’, Encyclopedia of Human Rights I (1st edition, Oxford University Press 2009) quotation: Thiele, ‘Housing Rights: Norms and Implementation’ in Encyclopedia of Human Rights I Thürer Daniel, Menschenrechte: Ideale, Instrumente, Institutionen (1st edition, Dike 2009) quotation: Thürer, Menschenrechte Tobes Brigit, ‘The Right to Health’ in Eide Asbjørn, Krause Catarina and Rosas Allan (eds), Economic, Social and Cultural Rights: A Textbook (2nd Edition, Martinus Nijhoff Publishers 2001) quotation: Tobes, ‘The Right to Health’ in Eide, Krause, and Rosas (eds), Economic, Social and Cultural Rights: A Textbook Törnudd Klaus, Finland and the international norms of human rights (1st edition, Springer 1986) quotation: Törnudd, Finland and the international norms of human rights Turner Taos, ‘Argentina’s Top Court Unfreezes Chevron Assets’, The Wall Street Journal (5 June 2013) United Nations, Report of the United Nations Water Conference (Mar del Plata, 1997)

384

References

UNCTAD, ‘World Investment Report 2006’ (UNCTAD, 2006) accessed 24 July 2013 UNDP, Human Development Report 1994 (1st edition, Oxford University Press 1994) quotation: UNDP, Human Development Report 1994 UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability (1st edition, UNDP 2000) quotation: UNDP and others, World Energy Assessment: Energy and the Challenge of Sustainability UNDP, Human Development Report 2006 – Beyond scarcity: Power, Poverty and the global water crisis (UNDP 2006) quotation: UNDP, Human Development Report 2006 – Beyond scarcity UN-HABITAT and OHCHR, Indigenous people’s right to adequate housing: A global overview (United Nations Housing Rights Programme, Report No 7, 2005) United Nations Subcommission on Prevention of Discrimination and Protection of Minorities, Guidelines on international events and forced evictions: Report of the Secretary-General (1995) U.S. Department of State, ‘Ecuador Country Report on Human Rights Practices for 1998’ (Bureau of Democracy, Human Rights, and Labor, 1999) U.S. Energy Information Administration, International Energy Outlook 2013: With Projections to 2040 (EIA, 2013) quotation: U.S. Energy Information Administration, International Energy Outlook 2013 ValmaÇa Cabanes Antonio, ‘La doctrina jurisprudencial del levantamiento del velo societario’, (2012) El Derecho accessed 08 June 2013 Vargas Vela de Eiden Talia, Environmental Policy under Political Transition: The Peruvian Mining Sector and the Yanacocha Gold Mine (2006) accessed 13 November 2012 Varghese Shiney, ‘Biofuels and Global Water Challenges’ (2007) IATP accessed 7 October 2011 Watson Hamilton Jonnette and Bankes Nigel, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in Aileen McHarg and others (eds), Property and the Law in Energy and Natural Resources (1st edition, Oxford University Press 2010) quotation: Watson Hamilton and Bankes, ‘Different Views of the Cathedral: The Literature on Property Law Theory’ in McHarg and others (eds), Property and the Law in Energy and Natural Resources Wawryk Alexandra S, ‘The Adoption of International Environmental Standards by Transnational Oil Companies: Reducing the Impact of Oil Operations In Emerging Economies’ (2002) Weber Albrecht, Menschenrechte Texte und Fallpraxis (1st edition, Sellier European Law Publisher 2004) quotation: Weber, Menschenrechte WEHAB Working Group, A Framework for Action on Energy (2002) quotation: WEHAB Working Group, A Framework for Action on Energy World Bank, ‘World Bank Broadens Public Access to Information’ (2010) accessed 12 March 2013

References

385

World Bank, Bank Procedure 4.01 – Environmental Assessment (1999) World Bank, Bank Procedure 4.10 – Indigenous Peoples (2005) World Bank, The revised Operational Policy 4.10 – Indigenous Peoples (2005) World Bank, World Development Report 2000/2001, Attacking Poverty (1st, Oxford University Press 2000) quotation: World Bank, World Development Report 2000/2001 World Bank Group and Extractive Industries, ‘The Final Report of the Extractive Industries Review : Chairman’s Summary (Meeting of the Executive Directors, 3 August 2004) accessed 4 December 2012 World Bank Group and Extractive Industries, Striking a Better Balance. Volume 1: Final Report of the World Bank Independent Extractive Industries Review (Extractive Industries Review, 2003), quotation: World Bank Group and Extractive Industries, Striking a Better Balance World Commission on Dams, Dams and Development: A new framework for decisionmaking (1st edition, Earthscan Publication 2000) quotation: World Commission on Dams, Dams and Development: A new framework for decision-making World Commission on Environment and Development, Our Common Future (1997) quotation: World Commission on Environment and Development, Our Common Future World Energy Council, Energy End-Use Technologies for the 21st Century (1st edition, World Energy Council 2004) quotation: World Energy Council, Energy End-Use Technologies for the 21st Century WHO, ‘Chemical hazards’ accessed 16 August 2012 WHO, Closing the gap in a generation: Health quality through action on the social determinants of health (1st edition, WHO 2008) quotation: WHO, Closing the gap in a generation WHO, Guidelines for Drinking Water Quality (4th Edition, WHO 2011) quotation: WHO, Guidelines for Drinking Water Quality WHO and others, Right to Water (WHO 2003) quotation: WHO and others, Right to water WHO and UNICEF, Global Water Supply and Sanitation Assessment 2000 Report (WHO and UNICEF 2000) quotation: WHO and UNICEF, Global Water Supply and Sanitation Assessment 2000 Report Ziegler Jean, Preliminary report of the Special Rapporteur of the Commission on Human Rights on the right to food (UN Doc A/56/210, 2001) quotation: Ziegler, Preliminary report of the Special Rapporteur of the Commission on Human Rights on the right to food Ziegler Jean, The right to food (UN Doc E/CN.4/2001/53, 2001), quotation: Ziegler, The right to food Ziegler Jean, Report of the Special Rapporteur on the right to food (UN Doc E/CN.4/2006/44, 2006), quotation: Ziegler, Report of the Special Rapporteur on the right to food Ziegler Jean, Report of the Special Rapporteur on the right to food (UN Doc A/HCR/7/5, 2008), quotation: Ziegler, Report of the Special Rapporteur on the right to food Zohra Ksentini Fatma, 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, 1994), quotation: Zohra Ksentini, Review of further developments