Human, Development & Other Rights-based Legal Approaches to International Environmental Law?

We shall cover two distinct areas in units 3 and 4, both implicitly focused on different sides of the issue whether and how legal concepts like human rights law are employed traditionally in the international environmental law sphere. Unit 3 covers mostly theory, while we shall examine how things have worked in practice when such rights were asserted in litigation.

1/7 Theoretically, rights-based analysis may only be limited by what sources of rights are recognized. For example, deep ecologists would designate human rights as anthropocentric, claiming flora and fauna should have rights too (think of Earth First in political activist terms, compare “Introducing Earth First!” (Rachel Carson Center Environment & Society Portal), or in the university setting perhaps People for the Ethical Treatment of Animals or PETA as a less aggressive version, with “PETA Slams The Offspring for Harmful Chimpanzee Music Video” (PETA news release, 05/14/21). So we also need to look to the question how broadly whose rights claims might be cast, and to recognize the broad diversity of views once we ask the question. Essentially, we look at “rights analysis” in the international law sphere first more typically in a quasi-political process like UN declarations, then separately in domestic courts where (international) human rights law may be pleaded as a source of law. But for us the ultimate shared question is whether this human rights law approach works any better than the customary law approach to articulating workable international environmental law rules.

Remember, you already have seen this kind of human rights approach in practice when Dr Mahatir in his speech just before the 1992 UN Rio Conference fulminated about foreigners egging on the peaceful indigenous (Malaysian) Penans to raise human rights claims about habitat loss in traditional Malaysian forests where they lived. The underlying substantive human rights claim was that indigenous peoples have a right to continue living as they always have hunting and gathering, etc., which cannot be done if their habitat is lost. (This being a third generation group rights claim, which technical designation we cover shortly.) Meanwhile, Dr. Mahatir argued that the foreign environmentalists really did not care about indigenous peoples. Instead, they were just asserting the alleged human rights violation to preserve the tropical forests, which is the kind of instance where human rights and international environmental law may overlap. But does the human rights analysis incorporate any way of balancing indigenous rights against general ideas about economic development like Dr. Mahatir saying in the same speech that developing countries should have the unlimited right to exploit their natural resources like tropical forests?

2/7 For those who have not yet taken a public international law or human rights law introductory course, let us initially explore some basic human rights law concepts. The first involves the doctrinal niceties of human rights law under which human rights law is largely a post-World War II creation in practical terms, despite law professors’ tendency to highlight legal precursors like armed conflict law reaching back into the Middle Ages (under which, for example, putting losing soldiers to the sword after surrender of a castle was prohibited; so no shooting of prisoners in 1947 Geneva Convention parlance). The further roots of human rights law are best understood as natural law (remember “all men are created equal, and are endowed by their creator with certain inalienable rights…”?), but we can put aside the history for the moment.

The way it works technically is that traditionally under the “law of nations” only states participated in the public international law system and were the repositories of all legal rights.

So, for example, under traditional “law of nations” style public international law, individuals were associated with their states via nationality. An injury by a foreign state to a state’s nationals was conceived of as an injury to the state of nationality itself, rather than creating a claim which could be asserted by the individual (so when you read Trail Smelter, it did not matter whether the damaged trees on the US side of the border were privately or publicly owned, because the cause of action was for damage on US territory, which was technically an injury to the interests of the US itself). And concerning who could plead such a claim, only the state of nationality could plead such a claim (because the injury was to the state’s interests; it did not create an international law claim on the individual level). Then human rights law recognized that international law “rights” might reside in the individual rather than only in the individual’s state of nationality, and in parallel the claims were recognized as erga omnes, meaning technically that a state’s erga omnes legal obligations were owed to all states, or at least a sufficient interest existed so that such violations directed against an offending state’s own nationals could be asserted by all states. Under that approach, a third-party state could assert an alleged violation of a (foreign) individual’s “human rights” against his or her state of nationality. (That differed from the traditional rule, because under the traditional law of nations the relationship between a state and its nationals precluded a third party state from asserting against the state of nationality its alleged mistreatment of its own national, because theoretically the only state with a potential claim would be the state of nationality.)

3/7 So under modern human rights law the national of a state is understood to be able to assert an individual international law human rights claim against his or her state of nationality, as well as third party states being able to challenge the violation too. That involves a further bit of jurisprudential legerdemain, because a claim is normally made that human rights law is customary law, but that is accompanied by an assertion typically that human rights law also is jus cogens, meaning that states cannot withhold themselves from customary law formation. So, for instance, a state that has customarily tortured its prisoners since time immemorial, could not claim that it had withheld itself from the reach of customary law’s human rights prohibition on torture through consistent state practice in opposition to the rule in formation. In practice, human rights law is claimed to be customary law, but in terms of how it is handled, appears closer to general principles of law in a jurisprudential sense (and ultimately natural law is probably the real source, with the idea that states could not withhold themselves from natural law principles). That is presumably its attraction jurisprudentially for proponents of international environmental law. First, it might provide a path to overcome sovereignty complications to the formation of universal international environmental law. And second, it seemed to spring from the egg fully grown, instead of being associated with long and consistence state practice (the aspect that its formation was interpreted in practice to work more like a broad view of general principles of law, rather than following traditional customary law formation rules). But does this lead to a clean “parts per million” statement of any law?

How and where could such human rights be asserted? Well, there is a UN human rights institutional system providing for systematic, periodic examination of individual states’ human rights performance (which the US opposes since it would permit embarrassing questions in areas like racial discrimination and gender equality; remember Nicky Hailey as US ambassador taking offense recently at the UN on the basis of such criticism?). There are also by treaty certain regional human rights courts and conventions, such as Inter-American Human Rights Court or the European Court of Human Rights (under the European Human Rights Convention). Further, human rights claims might also be asserted in domestic courts. For example, in the common law tradition, human rights (or natural justice employing the UK terminology) were part of the common law, as was public international law. So US law incorporated it theoretically directly from the common law upon American independence. But the exact scope of human rights claims remains hotly debated in customary law terms. Meanwhile, even rights clearly recognized as “human rights” under regional human rights treaties are often rejected by states not a party to said treaties. So, for example, the European Human Rights Convention recognizes under privacy a “right to be forgotten.” Theoretically, under the EHRC individuals have the right to control their personal information and after some period of time a right to suppression of knowledge of their past misdeeds. So, for example, lifelong branding of an French individual as a convicted sex offender might violate their human rights after they have paid their debt to society (so under the EHRC google may be required to remove from its search lists any damning local newspaper article about a convicted pedophile’s 1980s French conviction on child sexual abuse charges, for which he was sentenced to five years in prison, and which sentence he fully served). Such differing views of human rights clearly has practical effects in the internet age, and the same may be said about the scope of human rights generally claimed to exist under customary law.

4/7 The last bit of general human rights doctrine you need to know is that in the parlance of human rights law we speak of “three generations” of human rights law. The first generation represents civil and political rights, commonly understood as negative rights asserted against a state as a prohibition on the state taking action. As example, the fourth amendment to the US constitution asserts a right that citizens cannot be disturbed in their houses, goods and persons by the government, absent special circumstances. That sounds easy, but as noted above the devil is in the details as with privacy and the right to be forgotten. Meanwhile, first generation rights implicitly assume law’s orientation toward the individual rather than society. For example, Asian societies commonly are perceived as putting much more emphasis on protection of society as a whole, as opposed to of the individual. As a result, in some countries fourth amendment rights might not be subject to the same degree of protection, simply because of the conviction that the government must behave proactively in protection of society (so drug dealers might not have that “reasonable expectation of privacy” that fourth amendment jurisprudence might presume).

5/7 The second generation represents economic and social rights, which require some active promotion or involvement on the state’s part. Economic and social rights tend to be regarded in the US as claims belonging more to the political sphere rather than the legal sphere, except we litigate them commonly under state constitutions. The recent local example of long-running SC Supreme Court litigation involved the state constitutional question whether a right to “free public education” implies that the state has a duty to provide special school funding to upgrade schools in poorer areas, so that the schools in the I-95 “corridor of shame” become as well-resourced as schools in Columbia’s well-to-do Shandon neighborhood? (And the federal constitutional analogue is typically prison overcrowding litigation under the eighth amendment prohibition on cruel and unusual punishment.) The thing to understand from a legal perspective is that Civil Law jurisdictions for technical and historical reasons are much more open to civil and political rights claims than Common Law jurisdictions. (This is both as a technical matter of more theoretical Civil Law interpretation, and because their Civilian public law now supported by modern constitutions may rest upon social democratic ideals.The classic comparative constitutional law question focusing on this issue is whether your local legislature or parliament could simply abolish the crime of murder?  The technical answer is no in a social democracy because the state must embrace the criminal law as the highest order means to protect the highest order legal and social goods like human life.  On the other hand, it may be atrociously bad policy, but nothing similar prevents the abolition of the crime of murder under US views (at most there might be equal protection concerns). Meanwhile, a recent German Constitutional Court Decision applied this approach recently to force climate change legislation, see “Reshaping Climate Change Law: The German Federal Constitutional Court Orders the German Legislator [sic] to Set Clear CO2 Emission Reduction Goals Beyond 2030” (White & Case client letter, 07/14/21)

6/7 The third generation represents “group rights,” such as the claim that indigenous people like the Malaysian Penans have a right to live as they have traditionally, living off the land, with the result that their habitat must be left undisturbed. Another prominent third generation claim involves a “right to development,” which might be understood as asserted by Dr. Mahatir in his speech when he stated that developing countries generally have a right to exploit their forest resources (as opposed to having any legal obligation to leave their tropical forests in place as carbon sinks to avoid climate change). The whole group rights claims dance around the edges of international environmental law, because they typically may be asserted in conjunction with claims for resources also from other states (so what we referred to as the “who pays” question in international environmental law; poorer developing countries typically want richer industrialized countries to pay in terms of technology-transfer for free or at concessional rates for green technology, as under the 2015 Paris Agreement). So the group rights are now associated more with groups than individuals in human rights terms, which makes them malleable in terms of assertion of “rights” in the international law context (for example, groups might consist equally of indigenous peoples like the Penans, or alternatively all the citizens of a developing country). The characteristic disagreements reflected by jurisprudential splits referred to above between Common Law and Civil Law systems carry over from second to third generation rights, only more so. They affect the general recognition of second generation “economic and social rights” human rights claims as judiciable legal rights as opposed to negotiable political claims, but they have led to much sharper disagreements as between second and third generation rights, particularly whenever the third generation claims are novel and asserted on behalf of groups.

7/7 How does this come up in practice? Remember about second and third generation claims, particularly when you read UN declarations connected with international environmental law matters going back to the 1972 Stockholm Declaration (remember the “human environment”?). We asked the question in class already whether various articles in the Stockholm Declaration were accurate statements of the customary law (article 21, in particular). Two jurists from different countries could read the same text, however, and one would perceive valid second or third generation human rights law claims behind the individual articles, while the other might just ask whether article 21 correctly states the Trail Smelter customary law rule formulated under traditional “law of nations” customary law rules emphasizing sovereignty, such as you recently studied in the Trail Smelter, Nuclear Test Case and Lake Lanoux precedents. But stop and ask yourself another question, namely does it make sense that all of the focus in the UN-type documents is on the “human environment,” and what looks like “sustainable development” as something like a third generation right? So why apparently emphasize human rights over sovereignty aspects in the UN context?

Now does this admittedly sophisticated stuff in terms of differing understandings of generations of human rights law come up in practical terms, meanwhile you are just studying or practising law in the US? Well, for the practical view, how do you think multinational corporations deal with the idea that they may have operations in many different countries, and presumably they may be hauled into court in any of those countries? As example, we have the locally incorporated BMW Group Plant Spartanburg as manufacturing entity, but do you think the multinational BMW worries more about US or German law in conjunction with human rights issues (which we shall look into under Alien Tort Claims Act or ATCA develops in Unit 7)? Google was until recently embroiled in litigation before the European Court of Justice in conjunction with the right to be forgotten. And the financial sector is a wonderful example of “local” clients who do business all over the world. So if you interview in Charlotte, ask in-house bank counsel how they deal practically with overseas matters like financing a natural resource project or electricity generation facility in [name your developing country], and whether they can just rely on dispute resolution in the US?

Copyright 2020–21 © David Linnan.