Fiji's National Government has committed to using Marine Protected Areas (MPAs) to protect its marine environment. As Fiji is in the process of reforming its marine law, now is an opportune time to develop statutory mechanisms for establishing and regulating MPAs. This article considers the regulation of MPAs in Fiji's coastal waters—where the intersection of statutory and customary law poses particular challenges. ‘Customary MPAs’ already exist in Fiji's coastal environments, taking the form of tabu areas and ‘Locally Managed Marine Areas’ (LMMAs). Both of these are important mechanisms that any new statutory framework should incorporate and strengthen. In 2010, the draft Inshore Fisheries Decree (draft Inshore Decree) was prepared. Although the draft Inshore Decree appears to have stalled, it may yet be progressed to a final bill. Alternatively, some of the measures in it may be incorporated into another law. This article assesses one mechanism in the draft Inshore Decree that could be used to formalize customary MPAs—Community Fisheries Management and Development Plans (CFMDPs). It finds that CFMDPs demonstrate a number of strengths, in particular by supporting legal recognition of existing marine management measures. However, there are also weaknesses. Nevertheless, with refinement CFMDPs may be a useful tool for regulating Fiji's coastal MPAs.
Nupur Chowdhury and Nidhi Srivastava
Can a tribunal deliver justice? By posing this rhetorical question this article attempts to contextualize the introduction of the tribunal system of adjudication in India. Some of these tribunals have been able to evolve into mechanisms that have overcome their birth infirmities. The Supreme Court has intervened and supported strengthening of these tribunals and their evolution into entities (if not fully but certainly) more independent of the executive. This article explores these questions through a case study of the National Green Tribunal (NGT)—specifically focusing on the subject of jurisdiction. NGT is the newest of the tribunals that have been established since the Constitutional amendment was passed allowing for them. The jurisdiction of the NGT, although statutorily limited, has evolved in the light of Supreme Court's jurisprudence on the powers of tribunals. Further, the nature of environmental disputes are such that the NGT has had to expansively interpret both procedural mechanisms, such as limitation periods for allowing more disputes to be brought to the bench, and by entering into substantive areas such as climate change.
Currently, in Thailand, proposed development projects require an Environmental Impact Assessment (EIA) as part of the approval process. Effective public participation in the process of developing an EIA helps to ensure fairness and equity for the EIA system. It enables stakeholders to share information and exchange views concerning the complex issues and likely impacts of the proposed development project. Thailand has substantial legislation and regulations that aim to enable public participation for EIA processes. However, implementation of public participation provisions is failing at least to some degree. This article explores how the law concerning public participation might be improved to enable better implementation of the EIA system in Thailand. Some methods for employing effective public participation to support the implementation of EIAs are proposed.
Carol Warren and Agung Wardana
Bali faces serious environmental crises arising from overdevelopment of the tourism and real estate industry, including water shortage, rapid conversion of agricultural land, pollution, and economic and cultural displacement. This article traces continuities and discontinuities in the role of Indonesian environmental impact assessment (EIA) during and since the authoritarian ‘New Order’ period. Following the fall of the Suharto regime in 1998, the ‘Reform Era’ brought dramatic changes, democratizing and decentralizing Indonesia's governing institutions. Focusing on case studies of resort development projects in Bali from the 1990s to the present, this study examines the ongoing capture of legal processes by vested interests at the expense of prospects for sustainable development. Two particularly controversial projects in Benoa Bay, proposed in the different historical and structural settings of the two eras—the Bali Turtle Island Development (BTID) at Serangan Island in the Suharto era and the Tirta Wahana Bali Internasional (TWBI) proposal for the other side of Benoa in the ‘Reform Era’—enable instructive comparison. The study finds that despite significant changes in the environmental law regime, the EIA process still finds itself a tool of powerful interests in the efforts of political and economic elites to maintain control of decision-making and to displace popular opposition forces to the margins.
Sébastien Van Drooghenbroeck and Olivier Van der Noot
National constitutions historically embody the first legal source of rights protection. The development of universal and regional human rights instruments does not, in principle, aim at marginalizing these constitutional catalogues, by making them less useful. Indeed, those instruments only provide for a subsidiary, minimal protection, which national constitutions are allowed to overstep. Constitutions and treaties are thus deemed to assume their common project of human rights protection under the sign of complementarity. However, the constitutional practice of some States sometimes offers a more uncertain image. In some States, like Belgium, the question arises whether domestic constitutional law really adds value to the existing supranational protection of human rights. This questioning indirectly reveals a movement aiming at – or resulting in – the complete assimilation – i.e. a loss of substantial distinctiveness – between a constitutional and an international protection of rights and freedoms (section I). At the opposite, some other States like United Kingdom contemplate the constitutional “revival” as a kind of justification for the withdrawal from the supranational protection of human rights (section II). In this context, a movement of exclusion can be observed. This chapter will examine whether there is an intermediary position between assimilation and exclusion. We will more specifically try to highlight how European courts have developed tools of reasoning which recognize a meaning, a usefulness or a “weight” to the constitutional protection of Human Rights (hereafter “HR”), without giving this protection the decisive effect postulated by the logic of exclusion, or ignoring it according to the logic of assimilation. These tools of reasoning offer the possibility of a third approach in the relationships between the legal spheres; an integration, which guarantees coherent approaches of the common object, while maintaining the distinctive features of it (section III).
Edited by Eva Brems and Saïla Ouald-Chaib
Edited by Eva Brems and Saïla Ouald-Chaib
Derek Inman, Stefaan Smis and Edson ‘Krenak’ Dorneles de Andrade
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which, alongside recognising a wide range of basic human and fundamental freedoms for indigenous peoples, devoted a number of provisions to outlining their inalienable collective right to the ownership, use, and control of lands, territories, and natural resources, confirmed the international community’s recognition that land rights are of crucial importance for indigenous peoples. While the direct participation of indigenous groups in the negotiation process offers a high level of legitimacy to the issues raised in the UNDRIP what such participation should also offer is a users’ perspective on such issues. However, is this the case? Prior to, and since the adoption of, the UNDRIP, indigenous peoples’ land rights have been a matter of concern at a number of international human rights forums and regional human rights bodies in a fragmented manner. Are indigenous peoples’ perspectives adequately represented in these developments? Despite the fragmentation, are the developments inter-connected through the inclusion of the users’ perspective? This chapter will begin by analysing a users’ perspective on land and rights, which, in this case, are the Munduruku of Brazil. Next, it will outline the developments in the area of indigenous peoples’ land rights, highlighting instances where a users’ perspective is included, and determining if they reflect the users’ perspective we have teased out from our investigation into the perspectives of the Munduruku. Finally, the chapter examine recent developments where harmonization and integration seem to have replaced fragmentation, putting forth a common understanding and protection standard, all the while reflecting the desires of indigenous peoples.
Using the example of the Dutch discussions on the Disability Convention as a point of departure, this contribution takes an empirical perspective upon the fragmentation and integration of human rights law, from the vantage point of human rights users. Fragmentation, in human rights, can be considered both “horizontally” and “vertically” – horizontally as more and more human rights treaties are formulated, for instance at the international level, and vertically as the substantive content of human rights is interpreted by an ever-increasing amount of institutions. Integration, on the other hand, is the move towards a comprehensive approach towards sources of human rights law and the maximum inclusion of all human rights holders. This empirical contribution adds two perspectives to the literature on human rights fragmentation and integration. For one, it argues that, rather than being two mutually exclusive processes, human rights fragmentation and integration are essentially two sides of the same coin. Second, in contrast to much recent literature, it does not regard the merits of this interplay between fragmentation and integration from the perspective of states or of particular institutions, but rather takes the vantage point of human rights users. Discussing the consequences of the interplay between human rights fragmentation and integration for human rights users cannot be done in the abstract, but calls for a grounded approach. Here, a grounded theory of fragmentation/integration from a users’ perspective is illustrated based upon the engagement of one particular group of human rights users (people living with disabilities and organizations representing them), with one particular set of rights (disability rights, in particular accessibility) in one particular context (that of the Netherlands). A detailed analysis of these debates shows how drawing up a human rights treaty is merely the beginning of a process in which the rights concerned need to be mobilized, and renegotiated, in a wide variety of social fields – whether levels of government or otherwise. Ensuring legal enforcement becomes a matter of multi-level politics. At different levels key institutions (the executive, the legislature, the judiciary) offer different interpretations of what the Convention actually calls for and who has to do this. In the national negotiations, subsequently, actors refer to the interpretations at the European or international level that best suit their interests. This constant interplay between domestic and international actors, with a range of interpretations to work with, can, in the end, lead to implementation that is meaningful for those who carry such high expectations of “yet another treaty”.
Emmanuelle Bribosia and Isabelle Rorive
This chapter reflects the legal battle pursued in Belgium to fight the disturbing legal requirements (such as psychiatrisation, compulsory surgery and sterilisation) to legally changing one’s gender. Yet, giving legal recognition to a trans person’s gender identity is a first and necessary step towards equality and dignity. The Belgian case is highly relevant as the Belgian legal situation is far from isolated and recent major EU survey put Belgium at the forefront of the European countries which discriminate most against trans people when looking for work and in the workplace. The strategies which were developed to successfully challenge the Belgian law were embedded in the Human Rights Integration project. Through the lenses of the work we engaged in the Equality Law Clinic, this chapter explains how important users in the field played a key role in the legislative process. The Belgian law of 25 June 2017, which drastically revises legal gender recognition procedure is the result of a participatory process in which many stakeholders were involved. Trans people were at the core of the reform along with representatives of LGBT organisations, grassroots movements and academics linked to the Equality Law Clinic. The latter was an important player in bringing the legal expertise of an integrated approach to human rights which empowered the stakeholders concerned so as to make their voice heard and to change the law.