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Sustainable development and environmental rights

Prof. Gyula Bándi Director, Pázmány Péter Catholic University, Jean Monnet Centre of Excellence

Environmental Democracy Conference19 October 2012, Budapest

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Hungary footprint

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Outline

Something on sustainability Towards sustainability and human rights Environmental democracy, environmental justice Human rights approaches Procedural rights Duties, obligations Resilience as an alternative or?

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Message of His Holiness Pope John Paul II for the celebration of the World Day of Peace, 1 January 1990

8. ... On the other hand, the earth is ultimately a common heritage, the fruits of which are for the benefit of all. ... Today, the dramatic threat of ecological breakdown is teaching us the extent to which greed and selfishness - both individual and collective - are contrary to the order of creation, an order which is characterized by mutual interdependence.

9. .... The right to a safe environment is ever more insistently presented today as a right that must be included in an updated Charter of Human Rights. ...

15. Today the ecological crisis has assumed such proportions as to be the responsibility of everyone. ... there is an order in the universe which must be respected, and that the human person, endowed with the capability of choosing freely, has a grave responsibility to preserve this order for the well-being of future generations. I wish to repeat that the ecological crisis is a moral issue.

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Separate opinion of vice-president Weeramantry (Gabcikovo-Nagymaros case, 1997)

(b) Environmental Protection as a Principle of' International Law The protection of the environment is likewise a vital part of

contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. ...

While, therefore, al1 peoples have the right to initiate development projects and enjoy their benefits, there is likewise a duty to ensure that those projects do not significantly damage the environment.

(c) Sustainable Development as a Principle of International Law ... development can only be prosecuted in harmony with the

reasonable demands of environmental protection. ... It is thus the correct formulation of the right to development that that

right does not exist in the absolute sense, but is relative always to its tolerance by the environment. ...

The principle of sustainable development is thus a part of modern international law by reason not only of its inescapable logical necessity, but also by reason of its wide and general acceptance by the global community.

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ILA New Delhi Declaration of Principles of International Law Relating to SD, 2 April 2002

Preamble Expresses the view that the objective of sustainable development

involves a comprehensive and integrated approach to economic, social and political processes, which aims at the sustainable use of natural resources of the Earth and the protection of the environment on which nature and human life as well as social an economic development depend and which seeks to realize the right of all human beings to an adequate living standards on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting there from, with due regards to the need and interests of future generations ...

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EU Charter of Fundamental Rights

Article 37

Environmental protection

A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

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Linda Hajjar Leib 2011

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Kerri Woods 2010

... Democracy is only good (or necessary) for sustainability if it achieves ecologically good outcomes, and these cannot be guaranteed by democrative procedures in a free society. Given the freeedom to choose, people may choose to adopt unsustainable practices.....

Democracy may thus be advocated as a route for environmental sustainability if it is better able to facilitate a peaceful transition to an economy consistent with the principles of ecological economics, or if it is better able to deliver social justice, which ecologists might valeu for both instrumental and non-instrumental reasons. (WOODS, 2010, 108-109)

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Adrian Arsmtrong 2012

The many different approaches to environmental ethics are primarily concerned to establish why we seek to protect the environment, and to seek to find philosophical (or religious) justification for a concern with the environment.

... At its simplest, environmental justice is concerned with social

access to the environment. It is just a social approach, embedded in the study of political systems, and is thus generally anthropocentric, being concerned with the environment as a good or service available (or unavailable) to specific social groups. (ARMSRONG, 2012, 5)

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US EPA on Environmental Justice

Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. ...

Fair treatment means that no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies

Meaningful Involvement means that: people have an opportunity to participate in decisions about

activities that may affect their environment and/or health; the public’s contribution can influence the regulatory agency’s

decision; their concerns will be considered in the decision making

process; and the decision makers seek out and facilitate the involvement of

those potentially affected

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Linda Hajjar Leib 2011

The environmental democracy theory brings democratic governance into the realm of ecological sustainability. According to this theory, environmental procedure rights such as the rights to participation, remedies and access to justice are necessary to empower citizens, communities and civil society groups to challenge industrial projects and influence environmental decision an policies. (HAJJAR LEIB, 2011. 81)

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ECHR CASE OF FADEYEVA v. RUSSIA (9 June 2005)

68.  Article 8 has been invoked in various cases involving environmental concern, yet it is not violated every time that environmental deterioration occurs: no right to nature preservation is as such included among the rights and freedoms guaranteed by the Convention (see Kyrtatos v. Greece, no. 41666/98, ECHR 2003-VI, § 52). Thus, in order to raise an issue under Article 8 the interference must directly affect the applicant's home, family or private life.

  69.  The Court further points out that the adverse effects of environmental pollution must attain a certain minimum level if they are to fall within the scope of Article 8 ...There would be no arguable claim under Article 8 if the detriment complained of was negligible in comparison to the environmental hazards inherent to life in every modern city.

  70.  Thus, in order to fall under Article 8, complaints relating to environmental nuisances have to show, first, that there was an actual interference with the applicant's private sphere, and, second, that a level of severity was attained.

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Encyclical letter Caritas in Veritate of Benedict XVI, 2009

7. Another important consideration is the common good. ... To desire the common good and strive towards it is a requirement of justice and charity. ...

48. ... Consequently, projects for integral human development cannot ignore coming generations, but need to be marked by solidarity and inter-generational justice, while taking into account a variety of contexts: ecological, juridical, economic, political and cultural...

58. The principle of subsidiarity must remain closely linked to the principle of solidarity and vice versa, since the former without the latter gives way to social privatism, while the latter without the former gives way to paternalist social assistance that is demeaning to those in need.

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Kiss-Shelton

Human rights law and environmental protection interrelated at present in four different ways.

First, ... utilize or emphasize relevant human rights guarantees in drifting international environmental instruments. ... select from among the catalogue of human rights those rights that can serve the aims of environmental protection...

A second approach ... recasting applying human rights guarantees when their enjoyment is threatened by environmental harm. This method is unreservedly anthropocentric. ... Environmental protection is thus instrumental, not an end in itself ...

The thirds approach aims to incorporate the environmental agenda fully into human rights by formulating a new human right to an environment that is not defined in purely anthropocentric terms, and environment that is not only safe for human, but one that is ecologically-balanced and sustainable in the long term...

Finally, a fourth approach questions claims of rights in regard to environmental protection, preferring to address the issue as a matter of human responsibilities.

(SHELTON, 2011, 130-131. KISS-SHELTON, 1999, 141-144.)

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Michael R. Anderson 1996

There appear three main approaches: fist, mobilizing existing rights to achieve environmental ends; secondly, reinterpreting existing rights to include environmental concerns; and thirdly, creating new rights of an explicitly environmental character.

... (c) New Human Rights for Environmental Protection (i) Procedural rights ... A procedural or practical approach promises environmental

protection essentially by way of democracy and informed debate.... There is another argument in favour of a procedural right, rather thane

substantive right, which is this: because the desired quality of the environment is a value judgment which is difficult to codify in legal language, and which will vary across cultures and communities, it is very difficult to arrive at a single precise formulation of a substantive right to a decent environment. Therefore, the more flexible, honest, and context-sensitive approach is to endow people with robust procedural rights which will foster open and thoroughgoing debate on the matter....

(ANDERSON, 1996, 134-137)

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Ole W. Pedersen 2008

Two strong trends are emerging in relation to environmental rights in Europe.

First, the strong focus on procedural environmental rights to access to information, public participation and access to review procedures at the regional level, as embodied in the jurisprudence from the European Court of Human Rights, the Aarhus Convention, and environmental policy and law from the EC, has led to these rights today enjoying the status of regional customary law.

Second... the recognition of a substantive human right to the environment on a regional level in Europe is taking place in a cautious and step-by-step process, ...

That said, the answer to the question of whether a right exists under international law is likely to remain “not yet”.

(PEDERSEN, 2008, 111 p.)

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Linda Hajjar Leib 2011

The idea behind the mobilisation of procedural rights ... rests upon the argument that because of their paramount importance, environmental issues should not be left to the discretion of governments....

Participatory rights have a preventive and proactive role in managing and protecting the environment... In other words, environmental protection is attained through the democratic principles embodied in procedural rights. (HAJJAR LEIB, 2011. 85-86)

Definitional ambiguity and vagueness are the first objection raised against the adoption of the right to environment. ‘Healthy’, ‘decent’, ‘clean’, ecologically balanced’, ‘safe’ and ‘sound’ are examples of the multitude of adjectives commonly used to describe the desired quality of the environment. (HAJJAR LEIB, 2011. 91)

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Rio Declaration on Environment and Development 1992

Principle 10 Environmental issues are best handled with participation of all

concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

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Message of His Holiness Pope John Paul II for the celebration of the World Day of Peace, 1 January 1990

9. .... The right to a safe environment is ever more insistently presented today as a right that must be included in an updated Charter of Human Rights. ...

15. Today the ecological crisis has assumed such proportions as to be the responsibility of everyone. ... there is an order in the universe which must be respected, and that the human person, endowed with the capability of choosing freely, has a grave responsibility to preserve this order for the well-being of future generations. I wish to repeat that the ecological crisis is a moral issue.

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Rio+20, 20-22 June, 2012-10-16 The Future We Want I.

8. We also reaffirm the importance of freedom, peace and security, respect for all human rights, including the right to development and to an adequate standard of living, including the right to food, the rule of law, gender equality, the empowerement of women and the overall commitment to just and democratic societies for development.

10. We acknowledge that democracy, good governance and the rule of law ... are essential for sustainable development ... We reaffirm that to achieve oir sustainable development goals we need institutions at all levels that are effective, transparent, accountable and democratic.

13. We recognize that opportunities for people to influence their lives and future, participate in decision-making and voice their concerns are fundamental for sustainable development....

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Rio+20, 20-22 June, 2012-10-16 The Future We Want I.

43. We underscore that broad public participation and access ot information and judicial and administrative proceedings are essential to the promotion of sustainable development.... meaningful involvement and active participation of regional, national and subnational legislatures and judiciaries, and all major groups...

44. We acknowledge the role of civil society and the importance of enabling all members of civil society depends upon, inter alia, strengthening access to information and building civil society capacity and an enabling environment....

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Global Footprint 2012

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A Universal Declaration of Human Responsibilities,

Proposed by the InterAction Council, 1 September 1997

Article 9 All people, given the necessary tools, have a

responsibility to make serious efforts to overcome poverty, malnutrition, ignorance, and inequality. They should promote sustainable development all over the world in order to assure dignity, freedom, security and justice for all people.

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Chip Ward 2011

I suspect that resiliency is ultimately a matter or scale, distribution, modularity and redundancy – building resilient communities and economies will involve deeper challenges to prevailing assumptions and habits than just learning how to garden together. But I believe that we begun to shift away from a culture of reduction and fragmentation, from centuries of understanding how the earth makes wealth, to understanding how the earth creates health. It is a shift from mindless and blind growth for the growth’s sake to a recognition that ecosystem and watershed viability require reciprocal relationships and constraints, and that such reciprocity and constraints imply stewardship, thrift, temperance, precaution, fairness, generosity, care, solidarity and – yes – love. (WARD 2011, 112.)

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Stockholm Resilience Center

What is resilience? Resilience is the capacity of a system to continually change and

adapt yet remain within critical thresholds. Resilience is the long-term capacity of a system to deal with change

and continue to develop. Increased knowledge of how we can strengthen resilience in society

and nature is becoming increasingly important in coping with the stresses caused by climate change and other environmental impacts.

Why resilience?The resilience approach focuses on the dynamic interplay between periods of gradual and sudden change and how to adapt to and shape change.

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Miklós Bulla 2011

In terms of operation of a social or economic system the content of resilience: the ability of looking forward, the way how it can create integrated plans, scenarios for the collaboration of natural environment and society (civilization) operation, for the analyzesis of their interaction and in line with these the minimization of the dangers, to turn the likely consequences in an advantageous direction. Such system should not preserve its capacity to rebuilt its own structures unchanged, but should „learn” how to adapt itself for the changes. The system should preserve its ability to create new operational rules, control and feed-back establishments that minimize the handicaps and together with this to recognize the advantages and support their application.

It is very likely that it is easier to solve the tasks of meeting the development challenges by technology or techniques – many times only seemingly – then to adapt them into the way of thinking, domain of values or behavioural routines.

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Closing remarks

Environmental problems are mostly based in morals, behavioural problems, which lead to the false evaluation of economic and social values

On the other hand, people believe that environmental problems may be solved by the changes of technology or economy

Sustainable development is hardly possible any longer, the present tendencies may not be sustained

It is even worth to turn back to sustainable growth (e.g. EU trend) This is well reflected in the difficulties of coming to an agreement in

environmental rights It is nearly impossible to agree upon the substance of the environmental

rights Environmental justice, environmental democracy and procedural or

participatory rights may better be handled and are more developed as compared with substantive rights

Resilience is the new and probably feasible slogan and method, but needs to be formulated, mostly in connection with law and governance

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Resilience and law?

What shall belong to the legal toolbox of resielence? Moral values, intangible values (Paris 1972) Well-being in its complexity, quality of life Prevention and even more, precaution Integration as a principle and as a method Subsidiarity and solidarity as underlying concepts Planning, formulating policies, codes of conduct Risk assessment and alike Voluntary measures, cooperative measures (e.g. eco-management) Cooperative measures also in terms of procedures (conciliation,

administrative contract, etc.) Safeguard measures, e.g. financial guarantees, insurance Education Public participation Consultative forums … to be continued

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Our current vision of the future

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Thanks

Special thanks to the EU EACEA (Education, Audiovisual & Culture Executive Agency)

Jean Monnet Program (Lifelong Learning:

Erasmus - Jean Monnet) !!!

Many thanks for your kind attention!