Human rights courts have provided an important avenue for the protection of the environment over the past 40 years, particularly in light of the absence of a compulsory dispute resolution mechanism in international environmental law. Human rights adjudication is therefore of fundamental importance in the development of environmental principles and norms. Critics of a human rights approach to environmental protection argue, however, that human rights adjudication is unsuitable for the task of developing environmental principles first, because of the individualistic approach of human rights law; and second, because human rights law tends to focus on isolated rights rather than on the relationship between rights. This limits the ability of human rights adjudication to address environmental problems which affect many rights and the rights of many. This Chapter focuses on adjudication in the three regional human rights systems, specifically the European Court of Human Rights, the Inter-American Commission and Court of Human Rights and the African Commission and Court of Human and Peoples’ Rights. The Chapter’s aim is to examine the jurisprudence of those courts in the context of the objections relating to the individualism and disconnection of a human rights approach to environmental protection and to consider first, to what extent the practice of the courts support those objections and secondly, whether the practice of any of the courts suggest different or innovative approaches which, if developed and extended, could address or reduce the obstacles to using human rights law in order to protect the environment. Both questions have a bearing on the wider issue of how we reimagine human rights adjudication in order to harness the power of international human rights law to address environmental harm.
The importance of the interaction between environmental protection and diverse areas of law is widely recognized and reflected in the jurisprudence of a variety of judicial bodies, including human rights tribunals. However, there are a number of constraints in dealing with environmental claims in human rights tribunals, in particular the individualistic approach to rights and the related disconnected treatment of rights that often characterize human rights adjudication. This article assesses the extent to which the problems of individualism and disconnection are manifested in the jurisprudence of the European, African and Inter-American regional human rights tribunals and finds evidence of a variety of approaches which recognize the impact of environmental harm on a wide range of rights and on whole communities rather than isolated individuals. It argues that individualism and disconnection are not inherent features of human rights or human rights adjudication and that there is significant scope for human rights courts to develop approaches to adjudicating environmental human rights that recognize and address the collective impact of environmental destruction on a wide range of human rights.
Edited by Evadne Grant
Edited by Christina Voigt and Evadne Grant
Edited by Anna Grear and Evadne Grant
Edited by Anna Grear and Evadne Grant
Louis J. Kotzé and Evadne Grant
In this chapter we reflect on the role of human rights as part of the juridical toolbox to mediate the human-environment interface. Our point of departure is that adverse socio-ecological impacts disproportionally affect the lives and livelihoods of those least able to withstand or adapt to these impacts, including, in particular, communities and individuals living in the Global South. It is within this context of deepening global injustice that human rights emerge, as they have in the past, as a central, but imperfect, component of the juridical framework necessary to address the myriad socio-economic and ecological injustices that arise in the Anthropocene. Our central thesis is that human rights will continue to play an important role as part of the constitutional and broader legal interventions that are needed to determine and ultimately ensure socio-ecological security and justice in the Anthropocene, especially for those living in the Global South. What would be crucial in applying, improving on and further extending the environmental human rights paradigm in this endeavor, is to identify their shortcomings, to address these and, ultimately, to use the broad range of environmental human rights to their fullest effect.