The Environment and Human Rights Law

Dienelt, Anne

doi:10.1007/978-3-030-99339-9_3

Anne Dienelt²

415 Accesses

Abstract

When discussing human rights and the environment, there are two possible approaches to the topic. First, one can assess the influence of international environmental law on human rights. Second, one can analyze treaty and case law in order to assess how human rights protect the environment or its elements. This chapter deals with the latter; human rights law is the starting point of the analysis.

The basic characteristics of human rights law are addressed in the first section to facilitate the general understanding of this field of international law (Sect. 3.1). This also allows for a comparison with the two other fields of law relevant to the topic, namely the laws of armed conflict (see Chap. 2) and international environmental law (see Chap. 4). In the following sections, human rights protecting the environment will be addressed and analyzed (Sect. 3.2), starting with the right to the environment and its various shapes, followed by other human rights like the right to water and sanitation, or the right to life among others. The legal instruments and the relevant case law and reports issued on the topic are examined as well. While doing so, in how far these human rights protect for the environment and in how far they protect from the environment will also be assessed. As has been seen in the laws of armed conflict, there exist two categories in the context of protection of the environment: Art. 35(3) AP I protects for the environment, while the ENMOD Convention protects from the environment (Cf. Sect. 2.2). In concreto, it is argued that some human rights also protect for the environment, while others protect people from the environment, representing a parallel between the laws of armed conflict and human rights law when comparing the two. Protection from the environment refers to the environment as a source of a human rights violation. Does this parallel allow for a complementary application of the fields in terms of mutual support, since the direction of protection of the laws of armed conflict and human rights law in this particular regard is identical?

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Notes

1.
See Chapter 2.
2.
See Chapter 4.
3.
Procedural rights are not addressed. “Procedural environmental rights” are rights to information, participation in decision-making and access to justice. These rights are related to the freedoms of expression, thought, assembly and association. For more information on procedural rights in the context of human rights and the environment, see Pavoni, “Environmental Jurisprudence“, p. 72, in Boer (ed), (2015).
4.
Cf. Sect. 2.2.
5.
Cf. McCrudden (2008), p. 655. For a more philosophical approach, see Habermas (2012), p. 63, in Corradetti (2012).
6.
Based on this understanding, the AfrCommHPR approaches environmental protection, cf. Ouguergouz (2003).
7.
Cf. Boyle (2011), pp. 472 and 484; Braig (2013), p. 277; Kotzur (2001), p. 143.
8.
Cf. Boyle (2012), p. 613.
9.
Cf. more generally, Dupuy and Viñuales (2018), p. 359.
10.
Article 24: “All peoples shall have the right to a general satisfactory environment favourable to their development.”
11.
Article 11 Right to a Healthy Environment: “1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. 2. The States Parties shall promote the protection, preservation, and improvement of the environment.”
12.
Cf. Moeckli et al. (2014), pp. 98ff. See also Giegerich, Art. 60, §1, in: Dörr and Schmalenbach (2018).
13.
Cf. e.g. Moeckli et al. (2014), pp. 96 + 116. The IACtHR stated: “[M]odern Human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States. In concluding these human rights treaties, the States can be deemed to submit themselves to a legal order within which they, for the common good, assume various obligations, not in relation to other States, but towards all individuals within their jurisdiction.” Equally, the ECommHR in Austria v. Italy (Pfunders Case), app. no. 788/60, 4 Yearbook 116, has described this as follows: “The obligations undertaken by the High Contracting Parties in the [European] Convention [on Human Rights] are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringements by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties.”
14.
Cf. von Arnauld (2019), §$52 and 67.
15.
See e.g. Crawford (2002), p. 41, highlighting some exceptions including human rights law. See also Klein (2011), p. 484.
16.
On reciprocity in general, see Simma, “Reciprocity”, §$1ff, in: Peters (2021). For an in-depth analysis regarding the principle of reciprocity and treaty and customary law, see Simma (1972); Simma (1970).
17.
E.g. Art. 60 VCLT, see also on the consequences of material breaches Crawford (2019), p. 377.
18.
Only a very few have been conducted, but some have been conducted by States, such as the Bosnia Genocide case or the Georgia v. Russia case. Other treaties expressly provide for inter-state procedures: Art. 44 ACHR or Art. 24 ECHR.
19.
In ICJ, Reservations to the Genocide Convention, Advisory Opinion from 28 May 1951, ICJ Reports 1951, 15, §23: “[…] the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely the accomplishment of those high purposes which are the raison d’être of the convention. Consequently, in a convention on this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.”
20.
Cf. Moeckli et al. (2014), p. 101. More generally on the ICJ’s Barcelona Traction case, see Tams and Tzanakopoulos (2010), p. 781.
21.
Cf. Simma (1994), pp. 293ff; Zemanek (2000), pp. 16–17.
22.
Cf. ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) - Request for indiciation of provisional measures, order from 28 May 2009, §69.
23.
E.g. the cases initiated by the Marshall Islands against Pakistan, India and the UK regarding nuclear disarmament, see ICJ, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Judgment on preliminary objections from 5 October 2016. See also De Wet (2013), p. 2.
24.
See Crawford (2002).
25.
Cf. Crawford and Olleson (2014), pp. 415–449.
26.
Cf. Art. 31(1) Articles on State Responsibility.
27.
See ILC, Fragmentation Report, §§123–194.
28.
See generally on the topic of obligation erga omnes an in-depth analysis by Tams (2005). Tams actually argues in favor of standing before the ICJ based on obligations erga omnes, see Tams (2005), p. 197.
29.
Cf. Arts 2 and 3, IDI, Resolution on Obligations and Rights erga omnes in International Law, IDI Resolution I/2005 from 2005. See separate opinion of Judge Simma arguing in favor of standing regarding obligations erga omnes (partes), §33–35, in: ICJ, Armed Activities.
30.
Cf. Moeckli et al. (2014), p. 101.
31.
See Sect. 3.1.4.
32.
Only the African and American systems contain rights of indigenous peoples, for instance.
33.
Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted 20 March 1952, entered into force 18 May 1954, 213 UNTS 262, ETS 9.
34.
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, adopted 17 November 1988, entered into force 16 November 1999, OAX Treaty Series No. 69, 28 ILM 156 (1898).
35.
International Covenant on Civil and Political Rights (‘ICCPR’), adopted 16 December 1966, entered into force 23 March 19976, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights (‘ICESCR’), adopted 16 December 1966, entered into force 3 January 1976, 993 UNTS 3.
36.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 December 1984, entered into force 26 June 1987, 1465 UNTS 85.
37.
Convention on the Rights of the Child, adopted 20 November 1989, entered into force 2 September 1990, 1577 UNTS 3.
38.
Statute of the Council of Europe, adopted 5 May 1949, entered into force 3 August 1949, 87 UNTS 103, ETS 1.
39.
Constitutive Act of the African Union, adopted 11 July 2000, entered into force 26 May 2001, OAU Doc. CAB/LEG/23.15 (2001).
40.
African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 October 1986, OAU Doc.CAB/LEG/76/3 rev.5, 21 ILM 58 (1982).
41.
Pursuant to Arts 30 and 45 ACHPR. On the effectivity of the African Commission, see Udombana (2000), p. 45; Viljoen and Louw (2007), p. 1.
42.
Cf. Arts 45 and 55 ACHPR.
43.
OAU Doc. OAU/LEG/MIN/AFCHPR/PROT (III) of 9 June 1998. 30 of 54 member states of the African Union (‘AU’) have ratified the Protocol and only 8 of them have made a declaration allowing for individuals and NGOs to bring a case to the Court, see the declarations available at www.en.african-court.org (last accessed 25 August 2021).
44.
Established by Arts 6 and 15 of the Revised Treaty of the Economic Community of West African States, Economic Community of West African States (ECOWAS), Revised Treaty of the Economic Community of West African States, adopted 24 July 1993, entered into force 23 August 1995, 2373 UNTS 233, available at www.comm.ecowas.int (last accessed 7 August 2021).
45.
Cf. Arts 3(4) and 4(3) Supplementary Protocol, available at www.courtecowas.org (last accessed 12 August 2021). See also Alter et al. (2013), p. 737.
46.
Arab Charter on Human Rights, adopted 22 May 2004, entered into force 15 March 2008, reprinted in 12 Int’l Hum. Rts. Rep. 893 (2005), §38.
47.
ASEAN Human Rights Declaration, 18 November 2012, available at www.asean.org (last accessed 8 August 2021).
48.
European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, adopted 4 November 1950, entered into force 3 September 1953, ETS 5.
49.
European Social Charter, adopted 18 October 1961, entered into force 26 February 1965, 529 UNTS 89; ETS 35.
50.
Revised European Social Charter, adopted 3 May 1996, entered into force 1 July 1999, ETS 163.
51.
Art. 5 TEU: “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”
52.
Charter of Fundamental Rights of the European Union, adopted 26 October 2012, entered into force 1 December 2009, 2012/C 326/02.
53.
American Declaration of the Rights and Duties of Man, adopted 2 May 1948 O.A.S. Res. XXX, 43 AJIL Supp. 133 (1949).
54.
American Convention on Human Rights, adopted 22 November 1969, entered into force 18 July 1978, OAS Treaty Ser. 36.
55.
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, adopted 17 November 1988, entered into force 16 November 1999, OAS Treaty Ser. 69.
56.
Established in 1960 based on the Organization of American States’ Charter (‘OAS Charter’), Organization of American States’ Charter, adopted 30 April 1949, 1609 UNTS 47.
57.
Cf. Buergenthal (1980–1981), pp. 155–156.
58.
On a possible complementary application of regional and international human rights systems, see Heyns and Killander (2010), pp. 527ff.
59.
An overview on how the different human rights systems deal with pending cases, see Heyns and Killander (2010), pp. 527ff.
60.
E.g. the ECtHR, the ACtHPR or the IACtHR.
61.
For the purposes of this project, I refer to reparation in terms of Art. 34 ILC Articles on State Responsibility for Internationally Wrongful Acts (‘ILC ASR’), UN Doc. A/RES/56/83 from 28 January 2008 with the ILC ASR annexed. It is the most common and agreed upon term and includes three forms of reparation: “Article 34[.] Forms of reparation[.] Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter.” Another document, the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation to Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005) (‘Reparation Principles’), GA Res. 60/147 from 16 December 2005, UN Doc. A/RES/60/147, contains a broader understanding and contains five forms of reparation. Principle 18 states “In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international human rights law and serious violations of international humanitarian law should, as appropriate and proportional to the gravity of the violation and the circumstances of each case, be provided with full and effective reparation, as laid out in principles 19 to 23, which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.”
62.
See for an in-depth analysis of the topic, Shelton (2015), pp. 53–81.
63.
ICESCR requires regular national reports on implementation and is monitored by the Committee on Economic, Social and Cultural Rights (‘CESCR’), see ECOSOC Resolution 1985/17 of 28 May 1985. Regarding the implementation of ICCPR, Arts 28–45 ICCPR set up the Human Rights Committee to monitor ICCPR. See also the universal periodic review conducted by the Human Rights Council, established by resolution 60/251 from 15 March 2006.
64.
Cf. Taillant (2003), pp. 140, 154 +155, in: Picolotti and Taillant (2003).
65.
See inter alia the following cases, ICJ, Case Concerning Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections from 1 April 2011, ICJ Reports 2011, 70; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory; ICJ, Armed Activities. See also Simma stating: “[…] the human rights genie has escaped from the bottle. Since human rights considerations permeate more and more into areas of international law, even of the traditional, inter State, kind, issues of, and related to, human rights will necessarily present themselves also to the Court with increasing frequency.” In: Simma (2013), p. 589.
66.
See Sect. 3.1.3.
67.
In Maya Indigenous Community of Toledo, for instance, the IACommHR refers to the Ogoniland case of the ACommHPR when ruling on environmental rights, cf. IACommHR, Maya Indigenous Community of Toledo District v. Belize, merits from 12 October 2004, Case 12.053, Report No. 40/04, OEA/Ser.L/V/II.122 Doc. 5 rev. 1, 727 (2004), §149.
68.
See on different forms of judicial dialogue across human rights systems and beyond, Slaughter (2003), p. 191; Slaughter (1994), p. 99; Krotoszynski (2005), p. 1321; Müller and Kjos (2017); Berner (2016), p. 67; Koch Jr (2003), p. 879; Lobba and Mariniello (2017); Gelter and Siems (2012), p. 88.
69.
Cf. e.g. IACtHR, Kawas-Fernández v. Honduras, Jugdment on merits and costs from 3 April 2009, Ser. C No. 196, § 148; CECSR, Marangopoulos Foundation of Human Rights v. Greece, from 7 June 2007, complaint no. 30/2005, §196.
70.
Cf. Pavoni (2015), p. 74.
71.
See e.g. Geneuss (2015), p. 404.
72.
ECtHR, Tyler v. UK, Judgment from 25 April 1978, appl. no. 5856/72, series A no. 26, §31. Other cases on the matter include inter alia ECtHR, Kress v. France, Grand Chamber Judgment from 7 June 2001, appl. no. 39594/98, §70; ECtHR, Christine Goodwin v. UK, Grand Chamber Judgment from 11 July 2002, appl. no. 28957/95, §75; ECtHR, Bayatyan v. Armenia, Grand Chamber Judgment from 7 July 2011, appl. n.o 23459/03, §102; ECtHR, Sergey Zolotukhin v. Russia, Grand Chamber Judgment from 24 May 2016, appl. no. 14939/03, §80.
73.
See for instance Gardiner (2015), p. 467; Schabas (2017), pp. 47–49. See more generally, Djeffal (2015); Letsas (2013), p. 101; Desierto and Gillespie (2013), p. 549; Bernhardt (1999), p. 11; Arato (2010), p. 443; Barral (2012), p. 377.
74.
E.g. CECSR, International Commission of Jurists v. Portugal, from 9 September 1999, Complaint no. 1/1998, §32; CECSR, Marangopoulos Foundation of Human Rights v. Greece, §195.
75.
IACtHR, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment from 31 August 2001, Ser. C No. 79, §146. For an analysis sharing this observation, see Bjørge (2014), pp. 11ff.
76.
HRComm., Roger Judge v. Canada, communication from 20 October 2003, Comm. no. 829/1998, UN Doc. CCPR/C/78/D/829/1998, §10.3.
77.
See also Sect. 3.2.2 for an analysis of this right.
78.
For more on the ICESCR and evolutive interpretation, see Desierto and Gillespie (2013), p. 549.
79.
The CESCR described it as entitling “everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.”
80.
See e.g. a comment by the Islamic Republic of Iran during the Treaty Body Strengthening Process from 8 February 2012 on p. 1, questioning the legal status of the process of general comments and their nature: “[…] treaty bodies started assuming additional voluntary responsibilities, which are not entrusted to them in relevant international treaties.” available at https://www2.ohchr.org (last accessed 22 August 2021). See also Keller and Grover (2012), pp. 118–119.
81.
Cf. Spielmann (2012), p. 381; Gruszczynski and Werner (2014); Legg (2012); Benvenisti (1998), p. 843; Shany (2005), p. 907; Asche (2017).
82.
Cf. ECtHR, Sunday Times v. UK, Judgment from 26 April 1979, appl. no. 6538/74, §61.
83.
Cf. Benvenisti (1998), pp. 843–844.
84.
Cf. Aoláin (1995), p. 119. See also Sect. 3.1.3 in which it was argued that the different human rights systems are distinct from each other, even though there are many parallels and similarities which amount to some kind of universality of human rights.
85.
Cf. Art. 2(1) ICCPR, Art. 1 ECHR, Art. 1(1) ACHR.
86.
This also includes colonies and possibly also dependent territories, cf. Moeckli et al. (2014), p. 129.
87.
Cf. Moeckli et al. (2014), p. 131.
88.
Cf. Wilde (2005), p. 115; Bhuta (2016); Besson (2012), p. 857; Kamminga, “Extraterritoriality,” §$1f, in: Peters (2021); Bulto (2014); Milanovic (2011); Coomans and Kamminga (2004); Dennis (2005), p. 119.
89.
See e.g. Council of Europe/European Court of Human Rights (2021), Guide on Article 1 of the Convention, available at https://www.echr.coe.int/Documents/Guide_Art_1_ENG.pdf (last accessed 15 August 2021).
90.
Cf. Kamminga, “Extraterritoriality,” §1, in: Peters (2021).
91.
Cf. Milanovic (2011), p. 207.
92.
Cf. Milanovic (2011), p. 173.
93.
Cf. ECtHR, Banković v. Belgium and Others, Decision as to the admisssibility by the Grand Chamber from 12 December 2001, appl. no. 52207/99.
94.
ECtHR, Banković v. Belgium and Others, §57.
95.
ECtHR, Banković v. Belgium and Others, §$75f.
96.
Such as actions by diplomatic or consular agents abroad like in ECtHR, M v. Denmark, Judgment from 14 October 1992, appl. no. 17392/90, actions on board craft or vessels registered or carrying the flag of that state like in ECtHR, Hirsi Jamaa and others v. Italy, Grand Chamber Judgment from 23 February 2012, appl. no. 27765/09, or state actions outside a state’s territory but with the consent of the territorial state like in ECtHR, Drozd and Janousek v. France and Spain, Judgment from 26 June 1992, appl. no. 12747/87.
97.
See ECtHR, Loizidou v. Turkey, Preliminary objections from 23 March 1995, app. no. 15318/89; ECtHR, Loizidou v. Turkey, Judgment from 18 December 1996, Appl. no. 15318/89; ECtHR, Cyprus v. Turkey, Grand Chamber Judgment on just satisfaction from 12 May 2014, appl. no. 25781/94.
98.
ECtHR, Loizidou v. Turkey, Judgment (1996). See also ECtHR, Cyprus v. Turkey. For an in-depth analysis of the case, see Milanovic (2011), pp. 41ff.
99.
ECtHR, Ilaşcu and Ors and Romania (intervening) v. Moldova and Russian Federation, Judgment on merits and just satisfaction from 8 July 2004, appl. no. 48787/99.
100.
Cf. Moeckli et al. (2014), p. 130.
101.
ECtHR, Banković v. Belgium and Others, §80.
102.
ECtHR, Banković v. Belgium and Others, §80.
103.
ECtHR, Issa v. Turkey, judgment from 16 November 2004, appl. no. 31821/96.
104.
ECtHR, Women on Waves and others v. Portugal, Judgment from 3 February 2009, appl. no. 31276/05.
105.
ECtHR, Al-Skeini and others v. UK, Grand Chamber Judgment from 7 July 2011, appl. no. 55721/07.
106.
ECtHR, Issa v. Turkey.
107.
See also Moeckli et al. (2014), p. 130.
108.
ECtHR, Öcalan v. Turkey, Grand Chamber Judgment from 12 May 2005.
109.
Cf. ECtHR, Al-Saadoon and Mufdhi v. UK, Decision from 30 June 2009, appl. no. 61498/08, §§86–89.
110.
ECtHR, Medvedyev and others v. France, Grand Chamber Judgment from 29 March 2010, appl. no. 3394/03, §67. See also Milanovic (2011), p. 164, highlighting the indecisiveness of the Court up to December 2010 regarding the spatial or personal model of extraterritorial application.
111.
Cf. ECtHR, Loizidou v. Turkey (1995), §62; ECtHR, Cyprus v. Turkey, §76; ECtHR, Banković v. Belgium and Others, §§314–316.
112.
ECtHR, Al-Skeini and others v. UK, §142.
113.
See ECtHR, Al-Skeini and others v. UK, §142.
114.
ECtHR, Al-Skeini and others v. UK, §136: “The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.”
115.
Cf. Meier (2018), p. 395.
116.
ECtHR, Hassan v. UK, Grand Chamber Judgment from 16 September 2014, appl. no. 29750/09, §§78 +80.
117.
ECtHR, Jaloud v. the Netherlands, Grand Chamber Judgment from 20 November 2010, appl. no. 47708/08.
118.
UN Doc. S/RES/1483(2003) on the “Situation between Iraq and Kuwait” from 22 May 2003.
119.
Cf. ECtHR, Jaloud v. the Netherlands, §121.
120.
See ECtHR, Georgia v. Russia (II), Grand Chamber Judgment from 21 January 2021, appl. No. 38263/08, §114 with references to Al-Skeini and others v. UK, §§130 + 142.
121.
See ECtHR, Georgia v. Russia (II), §§115–124.
122.
With reference to ECtHR, Loizidou v. Turkey, Preliminary objections, §62; Cyprus v. Turkey, Grand Chamber Judgment, §76; Banković v. v. Belgium and Others, §70; Ilaşcu and Ors and Romania (intervening) v. Moldova and Russian Federation, §314–316; Loizidou v. Turkey, Judgment, §52; and Al-Skeini and others v. UK, §138.
123.
With reference to e.g. ECtHR, Hassan v. UK, §74; Jaloud v. the Netherlands, §139 as well as Al-Skeini and others v. UK, §149.
124.
Cf. Moeckli et al. (2014), p. 132.
125.
See inter alia Art. 1(1) IACHR. See also Berkes (2018).
126.
Cf. IACommHR, Victor Saldaño v. Argentina, communication from 11 March 1999, Case 12.254, report report no. 38/99, §17; IACommHR, Admissibility Franklin Guillermo Aisalla Molina (Ecuador-Colombia), from 21 October 2010, report no. 112/10, inter-state petition IP-02 A; IACommHR, Armando Alejandre Jr. et al. v. Cuba, 29 September 1999 from, report no. 86/99, case 11.589; IACommHR, Coard et Al. v. United States, report from 29 September 1999, report N. 109/99, case 10.951.
127.
IACtHR, Advisory Opinion on Environment and Human Rights (OC-23/17), Advisory Opinion from 15 November 2017, available at http://www.corteidh.or.cr/docs/opiniones/seriea_23_esp.pdf (last accessed 29 August 2021).
128.
Cf. Vega-Barbosa and Aboagye (2018).
129.
See on extraterritorial effects vs. extraterritorial application: Sect. 4.1.7.
130.
Cf. IACtHR, Advisory Opinion on Environment and Human Rights, §104: “En virtue de todas las consideraciones anteriores, de conformidad con los párrafos 72 a 103 y en respuesta a la primera pregunta del Estado solicitante, la Corte opina que: […] h. Frente a daños transfronterizos, una persona está bajo la jurisdicción del Estado de origen si media una relación de causalidad entre el hecho que ocurrió en su territorio y la afectación de los derechos humanos de personas fuera de su territorio. El ejercicio de la jurisdicción surge cuando el Estado de origen ejerce un control efectivo sobre las actividades llevadas a cabo que causaron el daño y consecuente violación de derechos humanos.” See also Kahl (2019), pp. 109 + 119; Vega-Barbosa and Aboagye (2018); Feria-Tinta and Milnes (2018).
131.
Cf. Feria-Tinta and Milnes (2018).
132.
AfrCommHPR, Democratic Republic of Congo v. Burundi, Rwanda and Uganda, decision from May 2003, communication no. 227/99.
133.
This was also confirmed by the AfrCommHPR in its General Comment No. 3 on the African Charter on Human and Peoples’ Rights - The Right to Life (Article 4), from 12 December 2015, §18.
134.
For a more nuanced analysis, see Milanovic (2011), pp. 222ff.
135.
Cf. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, §§109–112, which has been confirmed by the HRComm in CESCR, General Comment No. 3 on “the Nature of States Parties’ Obligations”, UN Doc. E/1991/23, annex III at 86 (1991), reprinted in Compilation of General Comments and General Recommendations, adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6 from 14 December 1990, 33.
136.
See Concluding Observations of the HRComm on the 6th Report of the UK, UN Doc. CCPR/C/BGR/CO/6 from 30 July 2008, §14. See also Concluding Observations of the HRComm regarding Croatia and its detention facility in Bosnia-Herzegovina, UN Doc. CCPR/C/79/Add.15 from 28 December 1992, §7.
137.
Cf. HRComm, Mabel Pereira Montero v. Uruguay, from 25 March 1982, case no. 106/81.
138.
Cf. HRCommission, López Burgos v. Uruguay, communication from 6 June 1979, UN Doc. A/36/40, 176, §12.3, §§12.1–12.3; HRCommission, Lilian Celiberti de Casariego v. Uruguay, from 29 June 1981, case no. 52/79.
139.
Cf. HRComm, General Comment No. 31 on “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant”, CCPR/C/21/Rev.1/Add. 13 from 26 May 2004, §10.
140.
Cf. HRComm, General Comment No. 36 on “Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life”, UN Doc. CCPR/C/GC/36 from 3 September 2019, §63: “[…] This includes person located outside any territory effectively controlled by the State, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonable foreseeable manner. […]” Whether this ‘impact’ approach will change how jurisdiction is construed by the HRComm or other human rights bodies will be seen. See also Mogster (2018).
141.
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, §109.
142.
ICJ, Armed Activities, §216.
143.
See ICJ, Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Descrimination (Georgia v. Russian Federation) (Request for the indiciation of provisional measures), Order from 15 October 2008, §109.
144.
See CESCR, General Comment No. 15 on “The Right to Water”, E/C.12/2002/11 from 20 January 2003, §53. See also Bulto (2014).
145.
Cf. Moeckli et al. (2014), p. 135.
146.
Cf. Moeckli et al. (2014), p. 135.
147.
See the Committee of the Rights of the Child, Chiara Sacchi et al v Germany, communication no. 107/2019, decision from 8 October 2021, UN Doc. CRC/C/88/D/107/2019, §9.5.
148.
See the Committee of the Rights of the Child, Chiara Sacchi et al v Germany, communication no. 107/2019, decision from 8 October 2021, UN Doc. CRC/C/88/D/107/2019, §§9.7–9.12.
149.
Cf. Art. 15 ECHR or Art. 4 ICCPR. For doctrine, see Higgins (1976), p. 281; MacDonald (1998), p. 225.
150.
See on this in general, Higgins (1976), p. 281.
151.
According to Art. 15 ECHR, Art. 2 (except in respect of deaths resulting from lawful acts of war) and Arts 3, 4(1) and 7 ECHR are non-derogable, including the right to life. States enjoy a large margin of appreciation when determining situations of emergency, see ECtHR, Mehmet Hasan Altan v. Turkey, Judgment from 20 March 2018, §§91–93; ECtHR, Sahin Alpay v. Turkey, Judgment from 20 March 2018, appl. no. 16538/17, §§75–77. A formal derogation does not need to be lodged, see ECtHR, Hassan v. UK, §101.
152.
According to Art. 4 ICCPR, Arts 6, 7, 8(1) and (2), 11, 15, 16 and 18 ICCPR are non-derogable.
153.
It only indirectly refers to the option in Art. 5(2) ICESCR.
154.
CESCR, General Comment No. 3 on “the Nature of States Parties’ Obligations”, §10.
155.
See e.g. Müller (2009), p. 557.
156.
Including Arts 3, 4, 5, 6, 9, 12, 17, 18, 19, 20 and 23 African Charter, including the right to life.
157.
For more on the African continent and derogation clauses, see Sermet (2007), p. 142; Ali (2013), p. 78.
158.
ILC, Draft Articles on the Effects of Armed Conflicts on Treaties with Commentaries, Yearbook of the LC, 2011, Vol. II, Part Two, UN Doc. A/66/10 from 2011.
159.
See ILC, Draft Articles on the Effects of Armed Conflicts on Treaties with Commentaries.
160.
Cf. Draft Article 7 Continued operation of treaties resulting from their subject matter: “An indicative list of treaties the subject matter of which involves an implication that they continue in operation, in whole or in part, during armed conflict, is to be found in the annex of the present draft articles.” Read together with the list annexed to the draft articles and its lit. f, see ILC, Draft Articles on the Effects of Armed Conflicts on Treaties with Commentaries.
161.
See the ICJ regarding the ICCPR in ICJ, Nuclear Weapons, §24: “[…] the Covenant was directed to the protection of human rights in peacetime, but that questions relating to unlawful loss of life in hostilities were governed by the law applicable in armed conflict.”
162.
Cf. ICJ, Nuclear Weapons, §25.
163.
ICJ, Nuclear Weapons, §25.
164.
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, §106. See also for the other systems, IACommHR, Coard et Al. v. United States; IACommHR, Victor Saldaño v. Argentina. See for ICESCR, e.g. Report of the Special Rapporteur on the Situation of Human Rights in Occupied Kuwait, 50–54, UN Doc. E/CN.4/1992/26 from 16 January 1992.
165.
The term “co-existence” is used by the ECtHR, see ECtHR, Hassan v. UK, §§104–105.
166.
See Kolb who writes: “In 1945, IHL and HRL were as distant as Scylla and Charybdis; today they are as inseparable as Castor and Pollux,” in: “Human Rights and Humanitarian Law”, §26, in: Peters (2021). See also Milanovic (2016), p. 78; Bethlehem (2013), p. 180; Hill-Cawthorne (2015), p. 293; Ben-Naftali (2011); d’Aspremont (2013), p. 3; Lubell (2005), p. 737; Oberleitner (2015); Orakhelashvili (2008), p. 161; Arnold and Quénivet (2008); Cassimatis (2008), p. 623; Droege (2007), p. 310; Römer (2010); Milanovic (2010), p. 95; Murray (2016); Kolb and Gaggioli (2013).
167.
See inter alia Jinks (2012), p. 656; Oberleitner (2015), pp. 81ff; Ben-Naftali (2011); Murray (2016), 4.01; Pauwelyn (2003), p. 410; Ben-Naftali and Shany (2003), p. 57.
168.
See Keller and Grover (2012), p. 116 and Sect. 3.2.2.
169.
IACtHR, Kawas-Fernández v. Honduras, §148.
170.
See IACHR Annual Report 1984–85, Chapter V, Areas in which Further Steps are Needed to Give Effect to the Human Rights Set Forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights, OEA/Ser.L/V/II.66: “the right to health should be accompanied by the right to enjoy the social conditions closely connected with a healthy life, such as […] a pollution-free environment.”
171.
Cf. AfrCommHPR, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, from 25 November 2009, complaint no. 276/03, 250: “not taken into consideration the fact that by restricting access to Lake Bogoria, it has denied the community access to an integrated system of beliefs, values, norms, mores, traditions and artifacts closely linked to access to the Lake.”
172.
See for instance, IACommHR, Community of San Mateo de Huanchor v. Peru, Judgment from 23 February 2005, report no. 69/04, case 504/03, §66: “the events that were denounced with regard to the effects of the environmental pollution of the Mayoc sludge, which has created a public health crisis in the population of San Mateo de Huanchor, if proven, could be characterized as a violation of the right to personal security”; IACommHR, Ngöbe Indigenous Communities v. Panama, from 5 August 2009, report no. 75/09, petition 286-08, §48: “with regard to the alleged effects of construction activity at the Chan-75 site on the environment and on the physical health of members of the communities, the IACHR considers that they tend to characterize alleged violations of Article 5 of the American Convention”; IACtHR, Community of La Oroya v. Peru, from 5 August 2009, ACHR Admissibility Report No. 76/09, §74: “the alleged deaths and/or health problems of alleged victims resulting from actions and omissions by the State in the face of environmental pollution generated by the metallurgical complex operating at La Oroya, if proven, could represent violations of the rights enshrined in Articles 4 and 5 of the American Convention, with reference to the obligations established in Articles 1.1 and 2 of that instrument.”
173.
Cf. IACommHR, Mossville Environmental Action Now v. US, from 17 March 2010, report no. 43/10, petition 242-05, 42: “right to equal protection under international human rights law has been interpreted as prohibiting not only intentional discrimination, but also any distinction, exclusion, restriction or preference which has a discriminatory effect […].”
174.
See Sects. 3.1.1 and 3.1.2.
175.
See also Sect. 2.2.2.
176.
See Sect. 2.2.3.
177.
Cf. Sect. 3.1.1.
178.
E.g. clean, healthy, decent, satisfactory, ecologically sound, flourishing, sustainable or/and secure.
179.
Cf. AfrCommHPR, The Social and Economic Rights Action Center and the Center for Economic and Social Rights (SERAC) v. Nigeria, decision on merrits from 27 October 2001, Comm. No. 155/96, §52.
180.
Cf. Sect. 3.1.5.
181.
For the ICESCR, see CESCR, General Comment No. 14 on “The Right to the Highest Attainable Standard of Health”, E/C.12/2000/4 from 11 August 2000, §4, with references to a healthy environment.
182.
The term widely known and used when referring to Art. 24 African Charter, even though it deviates from the wording of said provision, see AfrCommHPR, SERAC v. Nigeria, §52.
183.
AfrCommHPR, SERAC v. Nigeria.
184.
For an environmental impact assessment, see UNEP’s latest report on Ogoniland from 4 August 2011, available at http://web.unep.org/ (last accessed 25 August 2021).
185.
In this sub-section I focus on the right to a healthy environment. It is closely linked to other human rights. They will be addressed in the following sub-sections.
186.
Cf. AfrCommHPR, SERAC v. Nigeria, §49.
187.
Cf. AfrCommHPR, SERAC v. Nigeria, §51. The Commission held by citing the scholar Alexander Kiss that “an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and the development as the breakdown of the fundamental ecologic equilibria is harmful to physical and moral health.”
188.
Cf. AfrCommHPR, SERAC v. Nigeria, §51. The Commission then continues by analysing various human rights and possible violations and clarifies some of the content of the Charter regarding the environment.
189.
AfrCommHPR, SERAC v. Nigeria, §52.
190.
Article 16(1) ACHPR: “(1) Every individual shall have the right to enjoy the best attainable state of physical and mental health. (2) States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.”
191.
Cf. AfrCommHPR, SERAC v. Nigeria, §§52 + 53: “The Commission listed the following procedural obligations: to desist from directly threatening the health and environment of their citizens, to order or at least permit independent scientific monitoring of threatened environments, to require and publish environmental and social impact studies prior to any major industrial development, to undertake appropriate monitoring, to provide information to those communities exposed to hazardous materials and activities, and to provide meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.”
192.
This research project, however, focusses on the substantial obligations, leaving aside the procedural rights required by the right to the environment.
193.
Cf. AfrCommHPR, SERAC v. Nigeria, §51.
194.
Shelton (2002), p. 942.
195.
See Boyle (2011), p. 475.
196.
Art. 11(1) Right to a Healthy Environment: “1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. 2. The States Parties shall promote the protection, preservation, and improvement of the environment.”
197.
For the Inter-American right to environment, see Sect. 3.2.1.3.
198.
For more information about the different courts and committees in the African legal space, see Sects. 3.1.3 and 3.1.4.
199.
ECOWAS Community Court of Justice, The Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v. Nigeria, judgment from 30 November 2010, ECW/CCJ/APP/12/07; ECW/CCJ/JUD/07/10, §§14 + 19a.
200.
ECOWAS Community Court of Justice, SERAP v. Nigeria, §96.
201.
Art. 1 African Charter: “The Member States of the Organisation of African Unity, parties to the present Charter shall recognise the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect to them.”
202.
Cf. ECOWAS Community Court of Justice, SERAP v. Nigeria, §107.
203.
Cf. ECOWAS Community Court of Justice, SERAP v. Nigeria, §91.
204.
The ICJ defined environment in terms of “[…] not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn,” see Legality of the threat or use of nuclear arms, ICJ Advisory Opinion of 8 July 2006, §28.
205.
Cf. ECOWAS Community Court of Justice, SERAP v. Nigeria, §100. The communication refers to the International Law Institute’s definition, which states: “It must be considered as an indivisible whole, comprising the biotic and abiotic natural resources, notably air, water, land, fauna and flora and the interaction between these same factors (International Law Institute, Resolution of 4 September 1997, Article 1). The environment is essential to every human being. The quality of human life depends on the quality of the environment.”
206.
Cf. ECOWAS Community Court of Justice, SERAP v. Nigeria, §§100–101.
207.
Cf. ECOWAS Community Court of Justice, SERAP v. Nigeria, §111.
208.
Cf. ECOWAS Community Court of Justice, SERAP v. Nigeria, §121.
209.
The applicant also explicitly asked for “adequate monetary compensation to the victims of human rights violations in the Niger Delta”, see ECOWAS Community Court of Justice, SERAP v. Nigeria, §19.
210.
Cf. ECOWAS Community Court of Justice, SERAP v. Nigeria, §19d.
211.
ECOWAS Community Court of Justice, SERAP v. Nigeria, §114.
212.
Cf. Wang (2015), p. 425.
213.
League of Arab States, Arab Charter on Human Rights, adopted 22 May 2004, entered into force 15 March 2008, reprinted in 12 Int’l Hum. Rts. Rep. 893 (2005), §38.
214.
ASEAN Human Rights Declaration, adopted 18 November 2012, available at www.asean.org (last accessed 8 August 2021).
215.
See for instance UN press release from 19 November 2012 on “UN official welcomes ASEAN commitment to human rights, but concerned over declaration wording,” available at www.un.org (last accessed 25 August 2021).
216.
Cf. Art. 24 ASEAN Human Rights Declaration, compared to Art. 20 Universal Declaration of Human Rights. See also Renshaw (2013), p. 560.
217.
Art. 1 Purposes: “The purposes of ASEAN are: […] 9. To promote sustainable developments so as to ensure the protection of the region’s environment, the sustainability of its natural resources, the preservation of its cultural heritage and the high quality of life of its peoples; […].”
218.
Cf. Pavoni (2015), p. 147. Even though the ASEAN Intergovernmental Commission was established in 2009 according to Art. 14 ASEAN Charter, it does not have a specific mission and neither implementation nor enforcement powers were given to it.
219.
Cf. the ASEAN Intergovernmental Commission on Human Rights Annual Report 2016 July 2015–June 2016, adopted 3 July 2016, available at http://aichr.org/report (last accessed 25 August 2021).
220.
Cf. Gerber, “ASEAN Human Rights Declaration: A Step Forward or a Slide Backward”, The Conversation from 21 November 2012, available at www.theconversation.com/ (last accessed 6 August 2021).
221.
Cf. Pavoni (2015), p. 156.
222.
Cf. e.g. Cambodia, Indonesia or Thailand, for further information, see http://humanrightsinasean.info/ (last accessed 25 August 2021).
223.
E.g. Art. 2(2) of the Indian Constitution from 1949 or Art. 16(2) of the People’s Republic of Mongolia’s Constitution from 1992. For more, see chart in Pavoni (2015), pp. 168–169.
224.
Art. 11(1) Right to a Healthy Environment: “1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. 2. The States Parties shall promote the protection, preservation, and improvement of the environment.”
225.
Others have argued that based on Art. 26 IACHR there is a direct approach, this has now been confirmed by the IACtHR in its most recent advisory opinion, see IACtHR, Advisory Opinion on Environment and Human Rights, §57.
226.
According to Art. 19(6) San Salvador Protocol.
227.
Cf. IACtHR, Advisory Opinion on Environment and Human Rights, §57, together with IACtHR, Lhaka Honhat v. Argentina, Judgment from 6 Februrary 2020 (Merits, Reparations and Costs), Ser C No. 400.
228.
Cf. IACtHR, Lhaka Honhat v. Argentina, Judgment from 6 Februrary 2020 (Merits, Reparations and Costs), Ser C No. 400, §272.
229.
Cf. IACtHR, Lhaka Honhat v. Argentina, §208. See also Patarroyo (2020).
230.
See e.g. the dissenting opinions to Lhaka Honhat v. Argentina by Judge Sierra Porto, §7, and by Judge Grossi, §§9–57.
231.
Art. 19(7) San Salvador Protocol: “[…] to undertake to adopt the necessary measures, both domestically and through international cooperation, especially economic and technical, to the extent allowed by their available resources, and taking into account their degree of development, for the purpose of achieving progressively and pursuant to their internal legislations, the full observance of the rights recognized in this Protocol.”
232.
Cf. Art. 19(5) San Salvador Protocol.
233.
Cf. Art. 19(7) San Salvador Protocol.
234.
As of 12 March 2018, see www.oas.org (last accessed 12 August 2021).
235.
As of 12 March 2018, see www.oas.org (last accessed 12 August 2021).
236.
Cf. IACommHR, Kuna of Madungandí and Emberá of Bayano Indigenous Peoples and Their Members v. Panama, Judgment from 30 November 2012, Case 12.354, IACHR Merits Report No. 125/12, §233: “although neither the American Declaration of the Rights and Duties of Man nor the American Convention on Human Rights includes any express reference to the protection of the environment, it is clear that several fundamental rights enshrined therein require, as a precondition for their proper exercise, a minimal environmental quality, and suffer a profound detrimental impact from the degradation of the natural resource base. The IACHR has emphasized in this regard that there is a direct relationship between the physical environment in which persons live and the rights to life, security, and physical integrity. These rights are directly affected when there are episodes or situations of deforestation, contamination of the water, pollution, or other types of environmental harm on their ancestral territories.”
237.
IACommHR, Kuna of Madungandí and Emberá of Bayano Indigenous Peoples and Their Members v. Panama, §233. See also IACommHR, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc. 10 rev. 1 from 24 April 1997.
238.
The topic of indigenous peoples and their rights is not explicitly addressed in this research project. Nevertheless, based on their close relationship with their ancestral lands, (parts of) the environment is (are) protected via their specific rights as well: see several cases of the IACtHR, e.g. IACtHR, Pueblo Indígena de Sarayaku Regarding Ecuador, provisional measures, order of 17 June 2005 from, at considering clause no. 9; IACtHR, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, §§144 + 149; IACtHR, Yakye Axa Indigenous Community v. Paraguay, merits, reparations and costs from 17 June 2005, IACHR Series C no 125 (Official Case No); IACtHR, Sawhoyamaxa Indigenous Community v. Paraguay, Judgment on merits, reparations and costs from 29 March 2006, Series C No. 146, §§118, 121 and 131; IACtHR, Saramaka People. v. Suriname, Judgment on the preliminary objections, merits, reparations and costs from 28 November 2007, §§121, 122, 123, 126, 128 + 146. Their close relationship with the lands leads to an anthropocentric understanding of environmental protection. The role of indigenous peoples (and their rights) for the Americas (and also in the African context) is exceptional and plays a major role for national and international legislators on both continents. In Europe, however, their impact is only minimal, see e.g. Koivurova (2011), p. 1. For general information about indigenous peoples and natural resources in conflict settings, see IACommHR, Report on “Indigenous Peoples, Afro-Descent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities”, from 31 December 2015; or Dam-de Jong (2015), pp. 58–104. Regarding their procedural environmental rights, see Pavoni (2015), p. 97.
239.
See Sect. 3.2.1.1.
240.
The IACtHR cites case law of the ECtHR, namely the cases ECtHR, Guerra and Others v. Italy, Grand Chamber Judgment from 19 February 1998, appl. nos 116/1996/735/932. ECtHR, López Ostra v. Spain, Judgment on merits and just satisfaction from 9 December 1994, appl. no. 16798/90., (1994), and ECtHR, Fadeyeva v. Russian Federation, Judgment on the merits and just satisfaction from 9 June 2005, appl. no. 55723/00.
241.
IACtHR, Kawas-Fernández v. Honduras, §148.
242.
IACtHR, Kawas-Fernández v. Honduras, §5.
243.
Cf. IACtHR, Kawas-Fernández v. Honduras, §149.
244.
Cf. inter alia Resolution OEA/Ser.P AG/RES. 1819 (XXXI-O/01) “Human Rights and the Environment,” approved at the third plenary session held on 5 June 2001, available at www.oas.org (last accessed 25 August 2021); AG/RES. 1896 (XXXII-O/02) “Human Rights and the Environment in the Americas,” approved at the fourth plenary session held on 4 June 2002, available at www.oas.org (last accessed 25 August 2021); AG/RES. 1926 (XXXII-O/03) “Human Rights and the Environment in the Americas,” approved at the fourth plenary session held on 10 June 2003, available at www.oas.org (last accessed 25 August 2021); AG/RES. 2349 (XXXVII-O/07) “Water, Health and Human Rights,” approved at the fourth plenary session held on 5 June 2007, available at www.oas.org (last accessed 25 August 2021), and AG/RES. 2429 (XXXVIII-O/08) “Human Rights and Climate Change in the Americas,” approved at the fourth plenary session held on 3 June 2008, available at www.oas.org (last accessed 25 August 2021).
245.
Cf. ECtHR, Kyrtatos v. Greece, Judgment from 22 May 2003, appl. no. 41666/98, §52.
246.
See Parliamentary Assembly of the Council of Europe, resolution 2396 (2021) and recommendation 2211 (2021), both from 29 September 2021, available at https://pace.coe.int/en/files/29409 (accessed 8 October 2021).
247.
See for instance Marguénaud (2003), p. 15; Braig (2013); Martenet (2011), p. 137; Sudre (2005), pp. 531–532.
248.
Cf. Sect. 3.1.5.
249.
Cf. CECSR, Marangopoulos Foundation of Human Rights v. Greece, §194.
250.
Cf. CECSR, Marangopoulos Foundation of Human Rights v. Greece, §195.
251.
This is confirmed in a complaint about large-scale environmental pollution of the River Asopos due to discharge of industrial liquid waste, see CESCR, International Federation for Human Rights (FIDH) v. Greece, decision on the merits from 23 January 2013, complaint no. 72/2011, §49.
252.
Cf. CECSR, Marangopoulos Foundation of Human Rights v. Greece, §196. with references to a “Manual on human rights and the environment - Principles emerging from the case law of the European Court of Human Rights”, prepared by the Steering Committee for Human Rights, Council of Europe Publishing, Strasbourg, 2006.
253.
CECSR, Marangopoulos Foundation of Human Rights v. Greece, §202: “clear complementarity between Article 11 of the Charter and Article 2 (right to life) of the European Convention on Human Rights, as interpreted by the European Court of Human Rights.”
254.
Cf. CECSR, Marangopoulos Foundation of Human Rights v. Greece, §203.
255.
Cf. CECSR, Marangopoulos Foundation of Human Rights v. Greece, §202: “Measures required under Article 11 should be designed, in light of current knowledge, to remove the causes of ill-health resulting from environmental threats such as pollution.”
256.
See CESCR, General Comment No. 14 on “The Right to the Highest Attainable Standard of Health”, §4: “[…] the right to health […] extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.”
257.
Preamble, “[…] Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, […].”
258.
Article 24: “1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services. 2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures: […] (c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution; […].”
259.
See press release from 4 June 2021, available at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27139&LangID=E. Accessed 6 August 2021.
260.
See UN Doc. A/HRC/48/L.27 from 8 October 2021.
261.
In addition the member states of the Human Rights Council, additional 17 states authored and submitted the resolutions draft: Albania, Costa Rica, Croatia, Cyprus, Ecuador, Finland, Greece, Luxembourg, Maldives, Montenegro, Morocco, North Macedonia, Portugal, Slovakia, Slovenia, Switzerland and Tunisia.
262.
See UN Doc. A/HRC/48/L.23/Rev.1 from 8 October 2021.
263.
OHCHR, Report of the OHCHR on the Relationship Between Climate Change and Human Rights, UN Doc. A/HRC/10/61 from 15 January 2009, §18.
264.
OHCHR, Analytical Study on the Relationship Between Human Rights and the Environment, UN Doc. A/HRC/19/34 from 2011, §2.
265.
Cf. Knox, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN Doc. A/HRC/37/59 from 24 January 2018, §8.
266.
See the operational parts of UN Doc. A/HRC/48/L.23/Rev.1 from 8 October 2021.
267.
See also Boyd, Right to a healthy environment: good practices, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/HRC/43/53 from 30 December 2019.
268.
See §4 of the operational parts of UN Doc. A/HRC/48/L.23/Rev.1 from 8 October 2021.
269.
See also Articles 20, 26, 29 and 46 of the Geneva Convention relative to the Treatment of Prisoners of War; Articles 85, 89 and 127 of the Geneva Convention relative to the Treatment of Civilian Persons in Time of War; Articles 54 and 55 AP I; Articles 5 and 14 AP II. Or the preamble of the Mar Del Plata Action Plan of the United Nations Water Conference; §18.47 of Agenda 21, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992 (A/CONF.151/26/Rev.1 (Vol. I and Vol. I/Corr.1, Vol. II, Vol. III and Vol. III/Corr.1)) (United Nations publication, Sales No. E.93.I.8), vol. I: Resolutions adopted by the Conference, resolution 1, annex II; Principle No. 3 of the Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment (A/CONF.151/PC/112); Principle No. 2 of the Program of Action, Report of the United Nations International Conference on Population and Development, Cairo, 5–13 September 1994 (United Nations publication, Sales No. E.95.XIII.18), Chap. I, resolution 1, annex; §§5 and 19 of recommendation (2001) 14 of the Committee of Ministers to Member States on the European Charter on Water Resources; resolution 2002/6 of the United Nations Sub-Commission on the Promotion and Protection of Human Rights on the promotion of the realization of the right to drinking water; the report on the 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 (E/CN.4/Sub.2/2002/10) submitted by the Special Rapporteur of the Sub-Commission on the right to drinking water supply and sanitation, Mr. El Hadji Guissé.
270.
Art. 14(2) lit. h: “To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.” Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 December 1979, entered into force 3 September 1981, 1249 UNTS 13.
271.
Art. 24: “Children have the right to good quality health care – the best health care possible – to safe drinking water, nutritious food, a clean and safe environment, and information to help them stay healthy. Rich countries should help poorer countries achieve this.” Convention on the Rights of the Child, adopted 20 November 1989, entered into force 2 September 1990, 1577 UNTS 3, 28 ILM 1456 (1989).
272.
The CESCR was established by ECOSOC Resolution 1985/17 of 28 May 1985. The Committee is allowed to make suggestions and recommendations regarding the ICESCR. Another ECOSOC resolution “invited the Committee to consider […] a compilation of recommendations in the summary records […] paying particular regard to the practices followed by other treaty bodies, including the preparation of general comments by the Human Rights Committee.” The CESCR followed this invite and has since its third session published 24 General Comments.
273.
Cf. CESCR, General Comment No. 15 on “The Right to Water”.
274.
Cf. on the CESCR as a quasi-judicial body, see Tignino (2016), pp. 242–260.
275.
See ICJ, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment from 30 November 2010, §§66–67. See also Jorgensen (2007), p. 94; Winkler (2014), p. 41.
276.
Substantive Issues Arising in the Implementation of the CESCR, General Comment No. 15 on “The Right to Water”, §5.
277.
Art. 11 ICESCR: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.”
278.
Article 12 ICESCR: “(1) The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. (2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”
279.
Cf. CESCR, General Comment No. 6 on “The Economic, Social and Cultural Rights of Older Persons”, E/1996/22 from 8 December 1995, §§5 + 32.
280.
Cf. CESCR, General Comment No. 14 on “The Right to the Highest Attainable Standard of Health”, §4.
281.
Cf. CESCR, General Comment No. 15 on “The Right to Water”, §20.
282.
CESCR, General Comment No. 15 on “The Right to Water”, §3: “The Committee when analysing the right to water in context of Art. 11 states “[…] clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival.”
283.
CESCR, General Comment No. 15 on “The Right to Water”, §6.
284.
CESCR, General Comment No. 15 on “The Right to Water”, §2.
285.
Cf. CESCR, General Comment No. 15 on “The Right to Water”, §12(b).
286.
Cf. CESCR, General Comment No. 15 on “The Right to Water”, §12(c)(iv).
287.
Cf. CESCR, General Comment No. 15 on “The Right to Water”, §1.
288.
Cf. CESCR, General Comment No. 15 on “The Right to Water”, §16(a). Interestingly, women and children are also protected by the CEDAW and CRC, which include references to the right to water, see above. Non-discrimination is also required by Art. 2(2) ICESCR.
289.
CESCR, General Comment No. 15 on “The Right to Water”, §§16(f).
290.
Cf. CESCR, General Comment No. 15 on “The Right to Water”, §21: “[…] unlawfully diminish or pollute water, for example through waste from State-owned facilities or through use and testing of weapons; and limiting access to, or destroying, water services and infrastructure as a punitive measure, for example during armed conflicts in violation of international humanitarian law.”
291.
Cf. CESCR, General Comment No. 15 on “The Right to Water”, §20: “The Committee notes that during armed conflicts, emergency situations and natural disasters, the right to water embraces those obligations by which States parties are bound under international humanitarian law. This includes protection of objects indispensable for survival of the civilian population, including drinking water installations and supplies and irrigation works, protection of the natural environment against widespread, long-term and severe damage and ensuring that civilians, internees and prisoners have access to adequate water.”
292.
CESCR, General Comment No. 15 on “The Right to Water”, §21: “The obligation includes, inter alia, refraining from engaging in any practice or activity that denies or limits equal access to adequate water; arbitrarily interfering with customary or traditional arrangements for water allocation; unlawfully diminishing or polluting water, for example through waste from State-owned facilities or through use and testing of weapons; and limiting access to, or destroying, water services and infrastructure as a punitive measure, for example, during armed conflicts in violation of international humanitarian law.”
293.
Cf. CESCR, General Comment No. 15 on “The Right to Water”, §23: “The obligation includes, inter alia, adopting the necessary and effective legislative and other measures to restrain, for example, third parties from denying equal access to adequate water; and polluting and inequitably extracting from water resources, including natural sources, wells and other water distribution systems.”
294.
Cf. CESCR, General Comment No. 15 on “The Right to Water”, §28: “Such strategies and programmes may include: (a) reducing depletion of water resources through unsustainable extraction, diversion and damming; (b) reducing and eliminating contamination of watersheds and water-related eco-systems by substances such as radiation, harmful chemicals and human excreta; (c) monitoring water reserves; (d) ensuring that proposed developments do not interfere with access to adequate water; (e) assessing the impacts of actions that may impinge upon water availability and natural-ecosystems watersheds, such as climate changes, desertification and increased soil salinity, deforestation and loss of biodiversity; (f) increasing the efficient use of water by end-users; (g) reducing water wastage in its distribution; (h) response mechanisms for emergency situations; (i) and establishing competent institutions and appropriate institutional arrangements to carry out the strategies and programmes.”
295.
Cf. CESCR, Concluding Observations regarding Israel, E/C.12/1/Add.69 from 31 August 2001, §§12–13; CESCR, Concluding Observations regarding Israel, E/C.12/1/Add.90 from 26 June 2003, §40; Committee on the Rights of the Child, Concluding Observations regarding Israel, CRC/C/15/Add.195 from 9 October 2002, §51.
296.
See Sects. 3.1.7 and 3.1.8.
297.
Cf. CESCR, General Comment No. 15 on “The Right to Water”, §17.
298.
Cf. Tignino (2016), p. 79.
299.
Cf. ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, §136.
300.
Cf. Tignino (2016), p. 79.
301.
E.g. Arts 20, 26, 29 and 46 GC III addressing prisoners of war and water supplies and sanitary measures. See also Arts 85, 89 and 127 GC IV regarding civilians. AP I also addresses drinking water installations and supplies in context of objects indispensable for the survival of the civilian population, see Art. 54 AP I. Arts 5 and 14 AP I regard NIAC and address water. See also Winkler (2014), pp. 58ff.
302.
Cf. Giacca (2014), pp. 32f.
303.
In particular Sect. 5.4.1 on clarifying terminology and Sect. 5.4.2 on multilayered protection.
304.
Convention concerning the Occupational Health Services, adopted 25 June 1985, entered into force 17 February 1988, available at www.ilo.org/ (last accessed 6 August 2021).
305.
Convention on the Rights of Persons with Disabilities, adopted 13 December 2006, entered into force 3 May 2008, UN Doc. A/RES/61/106, Annex I.
306.
UN General Assembly, UN Doc, A/RES/64/292 from 3 August 2010.
307.
Human Rights Council resolution 15/9, UN Doc. A/HRC/RES/15/9 from 6 October 2010. Even earlier in 2008, the HRC had adopted resolution 7/22 from 28 March 2008 on Human Rights and Access to Safe Drinking Water and Sanitation to appoint an independent expert on the topic.
308.
ECtHR, Taskin and Others v. Turkey, Judgment from 10 November 2004, appl. no. 46117/99, §113.
309.
Cf. e.g. AfrCommHPR, Free Legal Assistance Group and Others v. Zaire, decision on merits from 4 April 1996, no. 25/89-47/90-56/91-100/93 at §47; AfrCommHPR, SERAC v. Nigeria, §§52–53.
310.
Cf. AfrCommHPR, Guidelines and Principles on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights, document from 24 October 2011, §§87–97.
311.
See IACommHR, Report on the Situation of Human Rights in Ecuador, §§91–92.
312.
Cf. IACtHR, Yakye Axa Indigenous Community v. Paraguay, §166.
313.
African Charter on the Rights and Welfare of the Child, adopted 11 July 1990, entered into force 29 November 1999, CAB/LEG/24.9/49 (1990).
314.
Cf. Art. 14(2) ACRWC, Art. 15 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, adopted 11 July 2003, entered into force 25 November 2005, available at https://au.int/ (last accessed 6 August 2021).
315.
Arab Charter on Human Rights, adopted 22 May 2004, entered into force 15 March 2008, reprinted in 12 Int’l Hum. Rts. Rep. 893 (2005), §38.
316.
Revised European Social Charter, adopted 3 May 1996, entered into force 1 July 1999, ETS 163.
317.
United Nations Water Conference 1977, in Report of the United Nations Water Conference, Mar del Plata, 14–25 March 1977 (UN publications Sales No. E.77.II.A.12), available at www.ielrc.org (last accessed 6 August 2021).
318.
Agenda 21, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992 (A/CONF.151/26/Rev.1 (Vol. I and Vol. I/Corr.1, Vol. II, Vol. III and Vol. III/Corr.1)) (United Nations publication, Sales No. E.93.I.8).
319.
Report of the International Conference on Population and Development, Cairo, 5–13 September 1994, UN Doc. A/Conf.171/13: Report of the ICPD (94/10/18), available at www.unfpa.org (last accessed 7 August 2021).
320.
Report of the UN Conference on Human Settlements (Habitat II), Istanbul, 3–14 June 1996, UN Doc. A/Conf.165/14 from 7 August 1996, available at https://documents-dds-ny.un.org (last accessed 7 August 2021).
321.
UN General Assembly Resolution 64/292 on “The human right to water and sanitation” from 3 August 2010, adopted with 122 votes in favor, no dissents, and 41 abstentions, available at https://undocs.org/ (last accessed 13 August 2021).
322.
E.g. the right to water is known either based on a constitution or case law in South Africa, India, New Zealand, Slovenia, and the US. See also CESCR, General Comment No. 15 on “The Right to Water”, §55. See also Thielbörger (2014), pp. 40f.
323.
E.g. Winkler (2014), pp. 58f; Ripley (2011); Jorgensen (2007), p. 57; Zemmali (1995), p. 550; Tignino (2016), p. 1.
324.
Cf. Sects. 3.1.7 and 3.1.8.
325.
AfrCommHPR, SERAC v. Nigeria, §67.
326.
Cf. AfrCommHPR, General Comment No. 3 on the African Charter on Human and Peoples’ Rights - The Right to Life (Article 4), §§3 + 41.
327.
AfrCommHPR, General Comment No. 3 on the African Charter on Human and Peoples’ Rights - The Right to Life (Article 4), §§3 + 41.
328.
See Sect. 2.2.1.1.
329.
Art. 1 American Declaration: “Every human being has the right to life, liberty and the security of his person.”
330.
Art. 4 American Convention: “Every person has the right to have his life respected. This right shall be protected by law […].”
331.
Cf. IACommHR, Report on the Situation of Human Rights in Ecuador, Chapter VIII: “The realization of the right to life, and to physical security and integrity is necessarily related to and in some ways dependent upon one’s physical environment. Accordingly, where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights are implicated.”
332.
Cf. IACommHR, Report on the Situation of Human Rights in Ecuador, Chapter VIII and conclusion: “[r]espect for the inherent dignity of the person is the principle which underlies the fundamental protections of the right to life and to preservation of physical well-being. Conditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being.”
333.
See IACommHR, Kuna of Madungandí and Emberá of Bayano Indigenous Peoples and Their Members v. Panama, §233: “there is a direct relationship between the physical environment in which persons live and the rights to life, security, and physical integrity. These rights are directly affected when there are episodes or situations of deforestation, contamination of the water, pollution, or other types of environmental harm on their ancestral territories.” Cf. IACommHR, Access to Justice and Social Inclusion: The Road Towards Strengthening Democracy in Bolivia, OEA/Ser.L/V/II from 28 June 2007, 253. IACtHR, Raposa Serra Do Sol Indigenous Peoples v. Brazil, from 23 October 2010, IACHR Admissibility Report No. 125/10, §47. In IACtHR, Yanomami v. Brazil, from 5 March 1985, IACHR Resolution No. 12/85, Case No. 7615, the Commission also confirmed the relation between the right to life and the environment. It also highlighted the rights of indigenous peoples to their lands in this regard. Moreover, the IACHR also found a violation of Articles 8 and 11 of the American Declaration, which protect the right of residence and movement and the right of health and well-being.
334.
Cf. IACtHR, Community of La Oroya v. Peru, §74: “the alleged deaths and/or health problems of alleged victims resulting from actions and omissions by the State in the face of environmental pollution generated by the metallurgical complex operating at La Oroya, if proven, could represent violations of the rights enshrined in Articles 4 and 5 of the American Convention, with reference to the obligations established in Articles 1.1 and 2 of that instrument.”
335.
Cf. ECtHR, L.C.B. v. UK, Judgment from 9 June 1998, appl. nos 14/1997/798/1001.
336.
Cf. facts stated by the Court, ECtHR, L.C.B. v. UK, §15.
337.
ECtHR, Öneryildiz v. Turkey, Judgment by the Grand Chamber from 30 November 2004, application no. 28939/99.
338.
ECtHR, Öneryildiz v. Turkey, §65.
339.
Other cases of the ECtHR dealing with waste and the right to life: ECtHR, Guerra and Others v. Italy; ECtHR, Botta v. Italy, Judgment from 24 February 1998, appl. nos. 153/1996/772/973; and ECtHR, Calvelli and Ciglio v. Italy, Grand Chamber Judgment on the merits from 17 January 2002, appl. no. 32967/96.
340.
ECtHR, Budayeva and others v. Russia, Judgment from 20 March 2008, appl. nos 15339/02 21166/02, 20058/02, 11673/02 and 15343/02.
341.
ECtHR, Budayeva and others v. Russia, at §71. See also ECtHR, L.C.B. v. UK, §54.
342.
Cf. ECtHR, Budayeva and others v. Russia, at §146: “the circumstances of the case in respect of the other applicants leave no doubt as to the existence of the threat to their physical integrity. […] This brings their complaints within the ambit of Article 2 of the Convention.”
343.
Cf. ECtHR, Kolyadenko and others v. Russia, Judgment from 28 February 2012, appl. nos 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05.
344.
Cf. the ENMOD Convention assessed in Sect. 2.2.2.
345.
Cf. ECtHR, Kolyadenko and others v. Russia, §203.
346.
See also Sassoli who stresses the potential Art. 2 ECHR may have regarding environmental protection Sassòli (2017), p. 3.
347.
Art. 6(1): “(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The other paragraphs address the death sentence, genocide and capital punishment and are not of relevance for the present topic.
348.
Cf. IACtHR, EHP v. Canada, communication from 27 October 1982, Communication No. 67/1980, UN Doc. CCPR/C/OP/1.
349.
Cf. IACtHR, EHP v. Canada, communication from 27 October 1982, Communication No. 67/1980, UN Doc. CCPR/C/OP/1, §8b.
350.
IACtHR, EHP v. Canada, §8.
351.
See ECtHR, L.C.B. v. UK.
352.
HRComm, Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, decison on admissibility from 2 March 1990, communication no. 167/1984, §32.2.
353.
Cf. HRComm, Bordes and Temeharo v. France, decision from 22 July 1996, communication no. 645/1995, §§1 + 2.2.
354.
Cf. HRComm, André Brun v. France, decision from 18 October 2006, communication no. 1453/2006, §5.6.
355.
Cf. HRComm, Susila Malani Dahanayake and 41 other Sri Lankan citizens v. Sri Lanka, decision from 14 September 2006, communication no. 1331/2004, §3.2.
356.
Cf. HRComm, General Comment No. 36 on “Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life”, UN Doc. CCPR/C/GC/36 from 3 September 2019, §62.
357.
Cf. HRComm, Portillo Cáceres v. Paraguay, Communication No. 2751/16, view adopted on 20 September 2019.
358.
Reeh (2019).
359.
Reeh (2019).
360.
See Portillo Cáceres v. Paraguay, §7.5.
361.
See Report of the Human Rights Committee for the 47th session, Consideration of reports submitted by state parties under article 40 of the Covenant: Poland, 9 October 1992, UN Doc. A/47/40, §143 (“what measures had been taken against environmental pollution to protect the right to life”); Report of the Human Rights Committee for the 47th session, Consideration of reports submitted by state parties under article 40 of the Covenant: Austria, 9 October 1992, UN Doc. A/47/40, §94 (“whether any steps had been taken to provide the population with a healthy environment by curbing pollution”).
362.
See Report of the Human Rights Committee for the 44th session, Consideration of reports submitted by state parties under article 40 of the Covenant: Italy, 29 September 1989, UN Doc. A/44/40, §562. Or see also Report of the Human Rights Committee for the 44th session, Consideration of reports submitted by state parties under article 40 of the Covenant: Norway, 29 September 1989, UN Doc. A/44/40, §65 (“It was also asked whether Norway intended to take measures to regulate the transport and dumping of toxic waste.”).
363.
See Report of the Human Rights Committee for the 46th session, Consideration of reports submitted by state parties under article 40 of the Covenant: Ukrainian Soviet Socialist Republic, 10 October 1991, UN Doc. A/46/40, §199: “what measures had been taken to protect the right to life against the risk of nuclear disaster and environmental pollution, particularly subsequent to the accident at Chernobyl.”
364.
See Committee of the Rights of the Child, Chiara Sacchi et al v Germany, communication no. 107/2019, decision from 8 October 2021, UN Doc. CRC/C/88/D/107/2019.
365.
See Committee of the Rights of the Child, Chiara Sacchi et al v Germany, communication no. 107/2019, decision from 8 October 2021, UN Doc. CRC/C/88/D/107/2019, §§9.15ff.
366.
See Committee of the Rights of the Child, Chiara Sacchi et al v Germany, communication no. 107/2019, decision from 8 October 2021, UN Doc. CRC/C/88/D/107/2019, §9.11.
367.
See Committee of the Rights of the Child, Chiara Sacchi et al v Germany, communication no. 107/2019, decision from 8 October 2021, UN Doc. CRC/C/88/D/107/2019, §9.12.
368.
Cf. more generally, Dupuy and Viñuales (2018), p. 359.
369.
Art. 14 African Charter: “The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.”
370.
Pretoria Declaration on Economic, Social and Cultural Rights in Africa (2004), §5, available at www.achpr.org/ (last accessed 7 August 2021).
371.
Cf. AfrCommHPR, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya.
372.
Cf. AfrCommHPR, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, §210: “[…] access roads, gates, game lodges and a hotel have all been built on the ancestral land of the Endorois community around Lake Bogoria and imminent mining operations also threatens to cause irreparable damage to the land.”
373.
Art. 21 American Declaration “Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and the home.”
374.
Art. 23 American Convention: “(1) Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. (2) No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.”
375.
Cf. IACommHR, Community of San Mateo de Huanchor v. Peru, decision from 15 October 2003, report no. 69/04, petition 504/03, §66.
376.
See IACommHR, Maya Indigenous Community of Toledo District v. Belize, §153: “by granting logging and oil concessions to third parties to utilize the property and resources that could fall within the lands which must be delimited, demarcated and titled or otherwise clarified or protected, without effective consultations with and the informed consent of the Maya people and with resulting environmental damage, further violated the right to property enshrined in Article XXIII of the American Declaration to the detriment of the Maya people.”
377.
See IACtHR, Metropolitan Nature Reserve v. Panama, Admissibility Decision, decision on inadmissibility from 22 October 2003, report no. 88/03, OEA/Ser.:/V/II.118 Doc. 70 rev. 2 at 524 (2003), petition 11.533, §34: “The Commission […] holds the present complaint to be inadmissible since it concerns abstract victims represented in an actio popularis rather than specifically identified and defined individuals. The Commission does recognize that given the nature of the complaint, the petition could hardly pinpoint a group of victims with particularity since all the citizens of Panama are described as property owners of the Metropolitan Nature Reserve. The petition is inadmissible, further, because the environmental, civic, and scientific groups considered most harmed by the alleged violations are legal entities and not natural persons, as the Convention stipulates.”
378.
IACommHR, Maya Indigenous Community of Toledo District v. Belize.
379.
Cf. IACommHR, Maya Indigenous Community of Toledo District v. Belize, §144.
380.
IACommHR, Maya Indigenous Community of Toledo District v. Belize, §152.
381.
See IACtHR, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment from 31 August 2001, Ser. C No. 79, §149.
382.
See IACtHR, Mayagna (Sumo) Awas Tingni Community v. Nicaragua., §153.
383.
Yakye Axa Indigenous Community v. Paraguay, §143.
384.
Lewis, Evtl HRs, p. 30.
385.
Art. 1(1): “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
386.
Cf. ECtHR, Öneryildiz v. Turkey.
387.
Cf. ECtHR, Budayeva and others v. Russia.
388.
See ECtHR, Hatton and Others v. UK, Grand Chamber Judgment from 8 July 2003, appl. no. 36022/97, §96: “there is no explicit right in the Convention to a clean and quiet environment […].”
389.
Art. 8: “(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
390.
See inter alia ECtHR, Di Sarno and Others v. Italy, Judgment from 10 January 2012, appl. no. 30765/08, §94.
391.
Cf. ECtHR, Hatton and Others v. UK, §96. See also ECtHR, Moreno Gomez v. Spain, Judgment from 14 November 2004, appl. no. 4143/02M ECtHR, Borysiewicz v. Poland, Judgment from 1 July 2008, appl. no. 71146/01, §48; ECtHR, Giacomelli v. Italy, Judgment from 2 November 2006, appl. no. 59909/00, §76.
392.
ECtHR, Hatton and Others v. UK, joint dissenting opinion: “close connection between human rights protection and the urgent need for a decontamination of the environment leads us to perceive health as the most basic human need and as preeminent.”
393.
Cf. ECtHR, Hatton and Others v. UK, joint dissenting opinion: Introduction §2: “Article 8 embraces the right to a healthy environment […].”
394.
Cf. ECtHR, Hatton and Others v. UK, joint dissenting opinion, Introduction and §2.
395.
Cf. ECtHR, López Ostra v. Spain, §51.
396.
Cf. ECtHR, Guerra and Others v. Italy, §57.
397.
Cf. ECtHR, McGinley and Egan v. UK, Judgment from 9 June 1998, appl. nos 21825/93 and 23414/94.
398.
Cf. ECtHR, Bacila v. Romania, Judgment from 30 March 2010, appl. no 19234/04, §§64–76.
399.
Cf. ECtHR, Brânduşe v. Romania, Judgment from 7 April 2009, appl. no. 6586/03, §§63 +67.
400.
Cf. ECtHR, Taskin and Others v. Turkey.
401.
See Sassòli (2017), p. 36.
402.
Cf. Braig (2017), p. 108.
403.
Cf. ECtHR, Muriel Herrick v. UK, Judgment from 10 March 1985, appl. no. 11185/84.; ECtHR, Buckley v. UK, Judgment on the merits from 25 September 1996, appl. no. 20348/92; ECtHR, Coster v. UK, Judgments on merits and just satisfaction from 18 January 2001, appl. no. 24876/94. See also Braig (2013), pp. 283f; Schmidt-Radefeldt (2000), pp. 181f.; García San José (2005).
404.
“(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”
405.
Cf. HRComm, Bordes and Temeharo v. France.
406.
Cf. HRComm, Bordes and Temeharo v. France, §5.7.
407.
Cf. HRComm, Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada, §32.2. finding that “the allegations concerning breaches of article 17 […] are similarly of a sweeping nature and will not be taken into account except in so far as they may be considered under the allegations which, generally, raise issues under article 27”; HRComm, André Brun v. France, §7, finding claim inadmissible; HRComm, Ángela Poma Poma, communication from 27 March 2009, communication no. 1457/2006, Doc. CCPR/C/95/1457/2006, §6.3 and 7.9., finding “the facts as presented by the author raise issues that are related to article 27” and, in light of finding violations of article 27, “Committee does not consider it necessary to deal with the author’s complaint of a violation of article 17”.
408.
See HRComm, Portillo Cáceres v. Paraguay, §7.8.
409.
See HRComm, Portillo Cáceres v. Paraguay, §7.8.
410.
See HRComm, Portillo Cáceres v. Paraguay, §7.8.
411.
See Sect. 3.2.3.1.
412.
Cf. Sects. 2.2.1.2 and 2.3.1.2.
413.
See Sect. 5.4.1.
414.
See Sect. 2.2.2.
415.
See Committee of the Rights of the Child, Chiara Sacchi et al v Germany, communication no. 107/2019, decision from 8 October 2021, UN Doc. CRC/C/88/D/107/2019.
416.
See Sect. 3.1.6.
417.
See Sects. 3.1.3 and 3.1.4.
418.
See Sect. 3.1.5.
419.
Cf. ECtHR, Loizidou v. Turkey, Judgment (1996), §72.
420.
See Sect. 5.4.1.
421.
See Sect. 5.4.2.

References

AfrCommHPR (2015) General comment no. 3 on the African Charter on Human and Peoples’ Rights - the right to life (Article 4)
Google Scholar
Ali AJ (2013) Derogation from constitutional rights and its implication under the African Charter on Human and Peoples’ Rights. Law Democr Dev 17(1):78–110
Google Scholar
Alter KJ et al (2013) A new International Human Rights Court for West Africa: The ECOWAS Community Court of Justice. AJIL 107:737–779
Article Google Scholar
Aoláin NF (1995) The emergence of diversity: differences in human rights jurisprudence. Fordham Int Law J 19(1):101–142
Google Scholar
Arato J (2010) Subsequent practice and evolutive interpretation: techniques of treaty interpretation over time and their diverse consequences. Law Pract Int Court Trib 9(3):443–494
Article Google Scholar
Arnold R, Quénivet NNR (2008) International humanitarian law and human rights law towards a new merger in international law. Martinus Nijhoff, Leiden
Book Google Scholar
Asche J (2017) Die Margin of Appreciation: Entwurf einer Dogmatik Monokausaler Richterlicher Zurückhaltung für den Europäischen Menschenrechtsschutz. Springer, Berlin
Google Scholar
Barral V (2012) Sustainable development in international law: nature and operation of an evolutive legal norm. EJIL 23(2):377–400
Article Google Scholar
Ben-Naftali O (2011) International humanitarian law and international human rights law. OUP, Oxford
Book Google Scholar
Ben-Naftali O, Shany Y (2003) Living in denial: the application of human rights in the occupied territories. Isr Law Rev 37(1):17–118
Article Google Scholar
Benvenisti E (1998) Margin of appreciation, consensus, and universal standards. N Y Univ J Int Law Polit 31(4):843–854
Google Scholar
Berkes A (2018) A new extraterritorial jurisdictional link recognised by the IACtHR. EJIL! Talk
Google Scholar
Berner K (2016) Judicial dialogue and treaty interpretation: revisiting the ‘Cocktail Party’ of international law. Archiv des Völkerrechts 54(1):67–90
Article Google Scholar
Bernhardt R (1999) Evolutive treaty interpretation, especially of the European Convention on Human Rights. German YB Int Law 42:11–25
Google Scholar
Besson S (2012) The extraterritoriality of the European Convention on Human Rights - why human rights depend on jurisdiction and what jurisdiction amounts to. LJIL 25(4):857–884
Article Google Scholar
Bethlehem D (2013) The relationship between international humanitarian law and international human rights law in situations of armed conflict. Camb J Int Comp Law 2(2):180–195
Article Google Scholar
Bhuta N (2016) The frontiers of human rights: extraterritoriality and its challenges. OUP, Oxford
Book Google Scholar
Bjørge E (2014) The evolutionary interpretation of treaties. OUP, Oxford
Book Google Scholar
Boyd D R (2019) Right to a healthy environment: good practices, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/HRC/43/53 from 30 December 2019
Google Scholar
Boyle A (2011) Human rights or environmental rights: a reassessment. Fordham Environ Law Rev 18(3):471–511
Google Scholar
Boyle A (2012) Human rights and the environment: where next? EJIL 23(3):613–642
Article Google Scholar
Braig K (2013) Umweltschutz durch die Europäische Menschenrechtskonvention. Helbing & Lichtenhahn, Basel
Google Scholar
Braig K (2017) Reichweite und Grenzen der aus der Europäischen Menschenrechtskonvention Abgeleiteten Umweltrechtlichen Schutzpflichten in der Europäischen Union. NuR 39:100–110
Article Google Scholar
Buergenthal T (1980-1981) The American and European Conventions on Human Rights: similarities and differences. Am Univ Law Rev 30(1):155–166
Google Scholar
Bulto TS (2014) The extraterritorial application of the human right to water in Africa. CUP, Cambridge
Google Scholar
Cassimatis AE (2008) International humanitarian law, international human rights law, and fragmentation of international law. Int Comp Law Q 56(3):623–639
Article Google Scholar
CESCR (1990) General comment no. 3 on the nature of states parties’ obligations. UN Doc. E/1991/23, annex III at 86 (1991), reprinted in Compilation of General Comments and General Recommendations, adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.6
Google Scholar
CESCR (2000) General comment no. 14 on “The Right to the Highest Attainable Standard of Health”. E/C.12/2000/4
Google Scholar
CESCR (2003) General comment no. 15 on “The Right to Water”. E/C.12/2002/11
Google Scholar
Coomans F, Kamminga MT (2004) Extraterritorial application of human rights treaties. Intersentia, Antwerp
Google Scholar
Corradetti C (2012) Philosophical dimensions of human rights: some contemporary views. Springer, Berlin
Book Google Scholar
Crawford J (2002) The International Law Commission’s articles on state responsibility: introduction, text and commentaries. CUP, Cambridge
Google Scholar
Crawford J (2019) Brownlie’s principles of public international law. OUP, Oxford
Book Google Scholar
Crawford J, Olleson S (2014) The character and forms of international responsibility. In: Evans M (ed) International law. OUP, Oxford, pp 443–476
Chapter Google Scholar
d’Aspremont J (2013) Articulating international human rights and international humanitarian law: conciliatory interpretation under the guise of conflict of norms-resolution. In: Fitzmaurice M, Merkouris P (eds) The interpretation and application of the European Convention of Human Rights. Martinus Nijhoff, Leiden, pp 1–31
Google Scholar
Dam-de Jong D (2015) International law and governance of natural resources in conflict and post-conflict situations. CUP, Cambridge
Book Google Scholar
De Wet E (2013) Invoking obligations erga omnes in the twenty-first century: progressive developments since Barcelona Traction. S Afr YB Int Law 38:1–19
Google Scholar
Dennis MJ (2005) Application of human rights treaties extraterritorially in times of armed conflict and military occupation. AJIL 99(1):119–141
Article Google Scholar
Desierto DA, Gillespie CE (2013) Evolutive interpretation and subsequent practice: interpretive communities and processes in the optional protocol to the ICESCR. ZaöRV 73:549–589
Google Scholar
Djeffal C (2015) Static and evolutive treaty interpretation: a functional reconstruction. CUP, Cambridge
Book Google Scholar
Dörr O, Schmalenbach K (eds) (2018) Vienna Convention on the law of treaties a commentary. Springer, Berlin
Google Scholar
Droege C (2007) The interplay between international humanitarian law and international human rights law in situations of armed conflict. Isr Law Rev 40(2):310–355
Article Google Scholar
Dupuy P-M, Viñuales JE (2018) International environmental law. CUP, Cambridge
Book Google Scholar
Feria-Tinta M, Milnes S (2018) The rise of environmental law in international dispute resolution: Inter-American Court of Human Rights issues landmark advisory opinion on environment and human rights. EJIL Talk!
Google Scholar
Gardiner RK (2015) Treaty interpretation. OUP, Oxford
Google Scholar
Gelter M, Siems M (2012) Networks, dialogue or one-way traffic: an empirical analysis of cross-citations between ten of Europe’s highest courts. Utrecht Law Rev 8(2):88–99
Article Google Scholar
Geneuss J (2015) Obstacles to cross-fertilisation: the International Criminal Tribunals’ ‘Unique Context’ and the flexibility of the European Court of Human Rights’ case law. Nord J Int Law 84(3):404–427
Article Google Scholar
Giacca G (2014) Economic, social, and cultural rights in armed conflict. OUP, Oxford
Book Google Scholar
Gruszczynski L, Werner WG (2014) Deference in International Courts and Tribunals: standard of review and margin of appreciation. OUP, Oxford
Book Google Scholar
Habermas J (2012) The concept of human dignity and the realistic Utopia of human rights. In: Corradetti C (ed) Philosophical dimensions of human rights: some contemporary views. Springer, Berlin, pp 63–79
Chapter Google Scholar
Heyns C, Killander M (2010) Toward minimum standards for regional human rights systems. In: Arsanjani MH et al (eds) Looking to the future. Martinus Nijhoff, Leiden, pp 527–558
Chapter Google Scholar
Higgins R (1976-1977) Derogations under Human Rights Treaties. BYIL 48(1):281–319
Google Scholar
Hill-Cawthorne L (2015) Humanitarian law, human rights law and the bifurcation of armed conflict. ICLQ 64:293–325
Article Google Scholar
HRComm (2004) General Comment No. 31 on “The Nature of the General Legal Obligation Imposed on States Parties to the Covenant”. CCPR/C/21/Rev.1/Add. 13
Google Scholar
ILC (2011) Draft articles on the effects of armed conflicts on treaties with commentaries. Yearbook of the ILC, 2011, Vol. II, Part Two, UN Doc A/66/10
Google Scholar
Jinks D (2012) International human rights law in time of armed conflict. In: Clapham A, Gaeta P (eds) The Oxford handbook of international law in armed conflict. OUP, Oxford, pp 656–674
Google Scholar
Jorgensen N (2007) The protection of freshwater in armed conflict. J Int Law Int Relat 3:57–96
Google Scholar
Kahl V (2019) Ökologische Revolution am Interamerikanischen Gerichtshof für Menschenrechte. EurUP 2:109, 119
Google Scholar
Keller H, Grover L (2012) General comments of the Human Rights Committee and their legitimacy. In: Keller H, Ulfstein G et al (eds) UN Human Rights Treaty Bodies: law and legitimacy. CUP, Cambridge, pp 116–198
Chapter Google Scholar
Klein E (2011) Denunciation of human rights treaties and the principle of reciprocity. In: Fastenrath U et al (eds) From bilateralism to community interest: essays in honour of Judge Bruno Simma. OUP, Oxford, pp 477–487
Chapter Google Scholar
Knox J (2018) Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. A/HRC/37/59
Google Scholar
Koch CH Jr (2003) Judicial dialogue for legal multiculturalism. Mich J Int Law 25(4):879–902
Google Scholar
Koivurova T (2011) Jurisprudence of the European Court of Human Rights regarding indigenous peoples: retrospect and prospects. Int J Minor Group Rights 18:1–37
Article Google Scholar
Kolb R, Gaggioli G (2013) Research handbook on human rights and humanitarian law. Edward Elgar, Cheltenham
Book Google Scholar
Kotzur M (2001) Theorieelemente des internationalen Menschenrechtsschutzes: das Beispiel der Präambel des Internationalen Paktes über bürgerliche und politische Rechte. Duncker & Humblot, Berlin
Book Google Scholar
Krotoszynski RJ (2005) I’d like to teach the world to sing (in perfect harmony): international judicial dialogue and the muses-reflections of the perils and the promise of international judicial dialogue. Mich Law Rev 104(6):1321–1359
Google Scholar
Legg A (2012) The margin of appreciation in International Human Rights law: deference and proportionality. OUP, Oxford
Book Google Scholar
Letsas G (2013) The ECHR as a living instrument: its meaning and legitimacy. In: Føllesdal A et al (eds) Constituting Europe: the European Court of Human Rights in a national, European and global context. CUP, Cambridge, pp 106–141
Chapter Google Scholar
Lobba P, Mariniello T (2017) Judicial dialogue on human rights: the practice of International Criminal Tribunals. Brill, Leiden
Book Google Scholar
Lubell N (2005) Challenges in applying human rights law to armed conflict. IRRC 87(860):737–754
Article Google Scholar
Marguénaud J-P (2003) Droit de l’Homme à l’Environnement et Cour Européenne des Droits de l’Homme. RJE 28:15–21
Article Google Scholar
Martenet V (2011) Le Droit à un Environnement Sain: De la Convention Européenne des Droits de l’Homme à la Constitution Fédérale? In: Papaux A, Brenci A (eds) Biosphère et droits fondamentaux (quid iuris?). Schulthess, Genève, pp 137–156
Google Scholar
McCrudden C (2008) Human dignity and judicial interpretation of human rights. EJIL 19(4):655–724
Article Google Scholar
Meier S (2018) Reconciling the irreconcilable? The extraterritorial application of the ECHR and its interaction with IHL. GoJIL 9:395–424
Google Scholar
Milanovic M (2010) Norm conflicts, international humanitarian law and human rights law. In: Ben-Naftali O (ed) International humanitarian law and international human rights law. OUP, Oxford, pp 95–128
Google Scholar
Milanovic M (2011) Extraterritorial application of human rights treaties: law, principles and policy. OUP, Oxford
Book Google Scholar
Milanovic M (2016) The lost origins of lex specialis – rethinking the relationship between human rights and international humanitarian law. In: Ohlin JD (ed) Theoretical boundaries of armed conflict and human rights. CUP, Cambridge, pp 78–117
Chapter Google Scholar
Moeckli D et al (2014) International human rights law. OUP, Oxford
Google Scholar
Mogster D (2018) Towards universality: activities impacting the enjoyment of the right to life and the extraterritorial application of the ICCPR. EJILTalk!
Google Scholar
Müller A (2009) Limitations to and derogations from economic, social and cultural rights. Hum Rights Law Rev 9(4):557–601
Article Google Scholar
Müller A, Kjos HE (eds) (2017) Judicial dialogue and human rights. CUP, Cambridge
Google Scholar
Murray D (2016) Practitioners’ guide to human rights law in armed conflict. OUP, Oxford
Google Scholar
Oberleitner G (2015) Human rights in armed conflict: law, practice, policy. CUP, Cambridge
Book Google Scholar
OHCHR (2009) Report of the OHCHR on the relationship between climate change and human rights. UN Doc. A/HRC/10/61
Google Scholar
OHCHR (2011) Analytical study on the relationship between human rights and the environment. UN Doc. A/HRC/19/34
Google Scholar
Orakhelashvili A (2008) The interaction between human rights and humanitarian law: fragmentation, conflict, parallelism, or convergence? EJIL 19(1):161–182
Article Google Scholar
Ouguergouz F (2003) The African Charter on Human and Peoples’ Rights: a comprehensive agenda for human dignity and sustainable democracy in Africa. Martinus Nijhoff, Leiden
Book Google Scholar
Patarroyo P (2020) Justiciability of ‘implicit’ rights: developments on the right to a healthy environment at the Inter-American Court of Human Rights. EJIL:Talk!, 11 May 2020. https://bit.ly/3nebtLT. Last accessed 12 Aug 2021
Pauwelyn J (2003) Conflict of norms in public international law: how WTO law relates to other rules of international law. CUP, Cambridge
Book Google Scholar
Pavoni R (2015) Environmental jurisprudence. In: Boer B (ed) Environmental law dimensions of human rights. OUP, Oxford, pp 69–106
Chapter Google Scholar
Peters A (ed) (2021) Max Planck Encyclopedia of Public International Law. OUP, Oxford
Google Scholar
Picolotti R, Taillant JD (2003) Linking human rights and the environment. University of Arizona Press, Tucson
Google Scholar
Reeh G (2019) Human rights and the environment: the UN Human Rights Committee affirms the duty to protect. EJIL:Talk!, 9 September 2019. https://bit.ly/3ngnKiJ. Last accessed 14 Aug 2021
Renshaw CS (2013) The ASEAN Human Rights Declaration 2012. Hum Rights Law Rev 13(3):557–579
Article Google Scholar
Ripley AC (2011) The human right to water and its application in the Occupied Palestinian Territories. Routledge
Book Google Scholar
Römer J (2010) Killing in a gray area between humanitarian law and human rights: how can the National Police of Colombia overcome the uncertainty of which branch of international law to apply? Springer, Berlin
Book Google Scholar
San José DIG (2005) Environmental protection and the European Convention on Human Rights. Council of Europe Publishing, Strasbourg
Google Scholar
Sassòli M (2017) Die EMRK in Krisenzeiten. In: Breitenmoser B, Ehrenzeller S (eds) Wirkungen der Europäischen Menschenrechtskonvention (EMRK) - heute und morgen: Kolloquium zu Ehren des 80. Geburtstags von Luzius Wildhaber. Nomos, Baden-Baden, pp 23–62
Google Scholar
Schabas WA (2017) The European Convention on Human Rights: a commentary. OUP, Oxford
Google Scholar
Schmidt-Radefeldt R (2000) Ökologische Menschenrechte: ökologische Menschenrechtsinterpretation der EMRK und ihre Bedeutung für die umweltschützenden Grundrechte des Grundgesetzes. Nomos, Baden-Baden
Google Scholar
Sermet L (2007) The absence of a derogation clause from the African Charter on Human and Peoples’ Rights: a critical discussion. Afr Hum Rights Law J 7:142–161
Google Scholar
Shany Y (2005) Towards a general margin of appreciation doctrine in international law? EJIL 16(5):907–940
Article Google Scholar
Shelton D (2002) Decision regarding communication 155/96 (Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria). AJIL 96(4):937–942
Article Google Scholar
Shelton D (2015) Remedies in international human rights law. OUP, Oxford
Google Scholar
Simma B (1970) Das Reziprozitätselement in der Entstehung des Völkergewohnheitsrechts. Fink, München
Google Scholar
Simma B (1972) Das Reziprozitätselement im Zustandekommen völkerrechtlicher Verträge. Duncker & Humblot, Berlin
Book Google Scholar
Simma B (1994) From bilateralism to community interest in international law. Recueil des Cours 221:217–384
Google Scholar
Simma B (2013) Human rights before the International Court of Justice: community interest coming to life? In: Tams C, Sloan J (eds) The development of international law by the International Court of Justice. OUP, Oxford, pp 301–326
Google Scholar
Slaughter A-M (1994) A typology of transjudicial communication. Univ Rich Law Rev 29(1):99–137
Google Scholar
Slaughter A-M (2003) A global community of courts. Harv Int Law J 44(1):191–219
Google Scholar
Spielmann D (2012) Allowing the right margin: the European Court of Human Rights and the National Margin of Appreciation Doctrine: waiver or subsidiarity of European review? CYELS 14:381–418
Google Scholar
St J MacDonald R (1998) Derogations under Article 15 of the European Convention on Human Rights. Colum J Transnatl Law 36:225–268
Google Scholar
Sudre F et al (2005) Droit Européen et International des Droits de l’Homme. Presses Universitaires de France, Paris
Google Scholar
Taillant JD (2003) Environmental advocacy and the Inter-American Human Rights System. In: Picolotti R, Taillant JD (eds) Linking human rights and the environment. University of Arizona Press, Tucson, pp 118–161
Google Scholar
Tams CJ (2005) Enforcing obligations erga omnes in international law. CUP, Cambridge
Book Google Scholar
Tams C, Tzanakopoulos A (2010) Barcelona traction at 40: the ICJ as an agent of legal development. LJIL 23(4):781–800
Article Google Scholar
Thielbörger P (2014) The right(s) to water: the multi-level governance of a unique human right. Springer, Berlin
Book Google Scholar
Tignino M (2016) Water during and after armed conflicts: what protection in international law? Brill, Leiden
Book Google Scholar
Udombana NJ (2000) Toward the African Court on human and peoples’ rights: better late than never. Yale Hum Rights Dev Law J 3(1):45–66
Google Scholar
Vega-Barbosa G, Aboagye L (2018) Human rights and the protection of the environment: the advisory opinion of the Inter-American Court of Human Rights. EJIL Talk!
Google Scholar
Viljoen F, Louw L (2007) State compliance with the recommendations of the African Commission on Human and People’s Rights: 1994–2004. AJIL 101(1):1–34
Article Google Scholar
von Arnauld A (2019) Völkerrecht. C.F. Müller, Heidelberg
Google Scholar
Wang YX (2015) Contextualizing universal human rights: an integrated Human Rights Framework for ASEAN. Duke J Comp Int Law 25:385–426
Google Scholar
Wilde R (2005) The “Legal Space” or “Espace Juridique” of the European Convention on Human Rights: is it relevant to extraterritorial state action? Eur Hum Rights Law Rev 10:115–124
Google Scholar
Winkler I (2014) The human right to water. Bloomsbury Publishing, London
Google Scholar
Zemanek K (2000) New trends in the enforcement of erga omnes obligations. Max Planck UNYB 4:1–52
Google Scholar
Zemmali A (1995) The protection of water in times of armed conflict. IRRC 35(308):550–564
Article Google Scholar

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Anne Dienelt

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Dienelt, A. (2022). The Environment and Human Rights Law. In: Armed Conflicts and the Environment. Springer, Cham. https://doi.org/10.1007/978-3-030-99339-9_3

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Published: 13 August 2022
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