Human rights and environmental wrongs : achieving environmental justice through human rights law

The links between the environment and human rights are well established internationally. It is accepted that environmental problems impact on individuals’ and communities’ enjoyment of rights which are guaranteed to them under international human rights law. Environmental issues also impact on governments’ capacity to protect and fulfil the rights of their citizens. In addition to these links between the environment and human rights, it is argued that human rights principles offer a strategy for addressing environmental injustice. The justice implications of environmental problems are well documented, with many examples where pollution, deforestation or other degradation disproportionately impacts upon poorer neighbourhoods or areas populated by minority groups. On the international level, there are environmental injustices which exist between developed and developing states. Further, there are also potential injustices for future generations. This paper investigates the role of human rights principles in addressing these instances of environmental injustice, and argues that the framework of human rights norms provides an approach to environmental governance which can help to minimise injustice and promote the interests of those groups who are most adversely affected. Further, it suggests that the human rights enforcement mechanisms which exist at international law could be utilised to lend more weight to claims for more equitable environmental policies.

Real estate issues associated with the implementation of a carbon trading framework : a rural landholders perspective

The issue of carbon sequestration rights has become topical following the United Nations Convention on Climate Change and the subsequent Kyoto Protocol which identified emissions trading as one of the mechanisms to reduce greenhouse gas emissions. The Australian Government has responded by initiating the Garnaut Climate Change Review which in its final report, proposed that an emissions trading scheme be introduced and set out some of the desirable features of such a trading scheme. This proposal has been the subject of much debate and at this stage there still seems to be little clarity surrounding the topic of emissions trading in Australia. The treatment of rights to carbon sequestered in vegetation is also an issue when reconciled with the system of land tenure and ownership in many jurisdictions. These carbon property rights are treated differently in different Australian and international jurisdictions ranging from recognition of their new and unique nature to fitting them within a more established common law framework, e.g.a profit a prendre. This paper identifies the treatment of these sequestered carbon rights within the wider property rights framework in Australia and considers issues that this treatment may inflict on land holders when there is a fracturing of ownership between the rights of the carbon in vegetation and the ownership of the land.

Foundations of International Climate Law : Objectives, principles and methods

This chapter explores the objectives, principle and methods of climate law. The United Nations Framework Convention on Climate Change (UNFCCC) lays the foundations of the international regime by setting out its ultimate objectives in Article 2, the key principles in Article 3, and the methods of the regime in Article 4. The ultimate objective of the regime – to avoid dangerous anthropogenic interference – is examined and assessments of the Intergovernmental Panel on Climate Change (IPCC) are considered when seeking to understand the definition of this concept. The international environmental principles of: state sovereignty and responsibility, preventative action, cooperation, sustainable development, precaution, polluter pays and common but differentiated responsibility are then examined and their incorporation within the international climate regime instruments evaluated. This is followed by an examination of the methods used by the mitigation and adaptation regimes in seeking to achieve the objective of the UNFCCC. Methods of the mitigation regime include: domestic implementation of policies, setting of standards and targets and allocation of rights, use of flexibility mechanisms, and reporting. While it is noted that methods of the adaptation regime are still evolving, the latter includes measures such as impact assessments, national adaptation plans and the provision of funding.

Assessment of the application of contingent valuation theory to bio-sequestered carbon

The issue of carbon sequestration rights has become topical following the United Nations Convention on Climate Change (United Nations 1992 at page 1414) and the subsequent Kyoto Protocol (United Nations Climate Change Secretariat 1998) which identified emissions trading as one of the mechanisms to reduce greenhouse gas emissions. Australian states have responded by creating a legal framework for the recognition of rights to bio-sequestered carbon. There is a lack of uniformity in the approach of each state to the recognition of these rights, which vary from the creation of new and novel interests in land to the adoption of more traditional rights such as a profit a prendre. Rights to bio-sequestered carbon are likely to have an impact on the utility, marketability, value and financing of rural land holdings. Despite the creation of the legal framework for recognition of rights to sequestrated carbon, there has been a delay in the introduction of a formalised carbon trading scheme in Australia. In the absence of an established carbon market, this paper addresses the applicability of contingent valuation theory to assess the value of bio-sequestered carbon rights to a rural land holder. Limitations and potential controversies associated with this application of contingent valuation theory are also addressed in this paper.

Judicial intervention in the affairs of unincorporated religious associations in New South Wales

The leading Australian High Court case of Cameron v Hogan (1934) 51 CLR 358 confirmed that associations which are 'social, sporting, political, scientific, religious, artistic or humanitarian in character’, and not formed ‘for private gain or material advantage’, are usually formed on a basis of mutual consent. Unless there is some clear, positive indication that the members wish to relate to each other in a legal fashion, the rules of the association will not be treated as an enforceable contract in contrast to the rules of incorporated bodies. Australian unincorporated associations experiencing internal disputes, like those in most other common law jurisdictions, have found courts reluctant to provide a remedy unless there is a proprietary interest or trust to protect. This is further compounded by the judicial view that an unincorporated association has no legal recognition as a ‘juristic person’. The right to hold property and the ability to sue and be sued are incidences of this recognition. By contrast, the law recognises ‘artificial’ legal persons such as corporations, who are given rights to hold property and to sue and be sued. However, when a number of individuals associate together for a non-commercial, lawful purpose, but not by way of a corporate structure, legal recognition ‘as a group’ is denied. Since 1934, a significant number of cases have distinguished or otherwise declined to follow this precedent of the High Court. A trenchant criticism is found in McKinnon v Grogan [1974] 1 NSWLR 295, 298 where Wootten J said that ‘citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions’. According to Wootten J at 298, if disputes are not settled by the courts, this would create a ‘legal-no-man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, and an arrogant disregard of rights’. Cameron v Hogan was decided in 1934. There is an increasing volume of first instance cases which distinguish or, in the words of Palmer J, ‘just pay lip service’ to this High Court decision. (Coleman v Liberal Party of Australia (2007) 212 FLR 271, 278). The dissenting cases seem to call for a judicial policy initiative. This would require recognition by judges that voluntary associations play a significant role in society and that members have a legitimate, enforceable expectation that the rules of the association will be observed by members and in the last resort, enforced by the courts without the need to prove contractual intention, the existence of a trust or the existence of a right of a proprietary nature. This thesis asks: what legal, as distinct from political, redress does an ordinary member have, when a rule is made or a process followed which is contrary to the underlying doctrines and philosophies embodied in the constitutional documents of an unincorporated religious association? When, if at all, will a court intervene to ensure doctrinal purity or to supervise the daily life of a large unincorporated religious association? My research objective is to examine and analyse leading cases and relevant legislation on the enforceability of the constitutions of large, unincorporated, religious associations with particular reference to the Anglican Church in New South Wales. Given its numerical size, wide geographical spread and presence since the foundation of New South Wales, the Anglican Church in New South Wales, contains a sufficient variety of ‘real life’ situations to be representative of the legal issues posed by Cameron v Hogan which may be faced by other large, unincorporated, religious associations in New South Wales. In contemporary society, large, unincorporated, religious associations play an important community role. The resolution of internal disputes in such associations should not remain captive to legal doctrines of an earlier age.

Addressing vulnerability and human rights in disaster response mechanisms in Oceania

The Oceania region is an area particularly prone to natural disasters such as cyclones, tsunamis, floods, droughts, earthquakes and volcanic eruptions. Many of the nations in the region are Small Island Developing States (SIDS), yet even within wealthy states such as Australia and New Zealand there are groups which are vulnerable to disaster. Vulnerability to natural disaster can be understood in human rights terms, as natural disasters threaten the enjoyment of a number of rights which are guaranteed under international law, including rights to health, housing, food, water and even the right to life itself. The impacts of climate change threaten to exacerbate these vulnerabilities, yet, despite the foreseeability of further natural disasters as a result of climate change, there currently exists no comprehensive international framework for disaster response offering practical and/or legally reliable mechanisms to assist at‐risk states and communities. This paper sets out to explore the human rights issues presented by natural disasters and examine the extent to which these issues can be addressed by disaster response frameworks at the international, regional and national levels.

Trade in 'Dirty Air' : carbon crime and the politics of pollution

‘Carbon trading fraudsters may have accounted for up to 90% of all market activity in some European countries, with criminals pocketing billions, mainly in Britain, France, Spain, Denmark and Holland, according to Europol and the European law enforcement agency.’ (Mason, 2009). ‘Carbon offset projects often result in land grabs, local environmental and social conflicts, as well as the repression of local communities and movements. The CDM approval process for projects allows little space for the voices of Indigenous Peoples and local communities – in fact, no project has ever been rejected on the grounds of rights violations, despite these being widespread’. (Carbon Trade Watch, 2013)

Legal rights during pandemics : federalism, rights and public health laws - a view from Australia

Pandemic influenza will cause significant social and economic disruption. Legal frameworks can play an important role in clarifying the rights and duties of individuals, communities and governments for times of crisis. In addressing legal frameworks, there is a need for jurisdictional clarity between different levels of government in responding to public health emergencies. Public health laws are also informed by our understandings of rights and responsibilities for individuals and communities, and the balancing of public health and public freedoms. Consideration of these issues is an essential part of planning for pandemic influenza.

Reproductive Health as a Human Right: A Matter of Access or Provision?

This article seeks to understand why, despite over three decades of claiming women's reproductive health as a human right, we have seen little progress in reducing their health inequalities and poor health outcomes. I argue that one reason for this lack of progress may be due to a failure to clearly articulate the responsibilities of key actors, crucially states, in ensuring that women have access to, and provision of, services required to realize their reproductive rights. What is needed, this article suggests, is a framework that can translate decades of rights language into action and specifically identify the provisions required to address women's health.

A human rights-based approach to disaster displacement in the Asia-Pacific

This paper analyzes the application of rights-based approaches to disaster displacement in the Asia-Pacific region in order to assess whether the current framework is sufficient to protect the rights of internally displaced persons. It identifies that disaster-induced displacement is increasingly prevalent in the region and that economic and social conditions in many countries mean that the impact of displacement is often prolonged and more severe. The paper identifies the relevant human rights principles which apply in the context of disaster-induced displacement and examines their implementation in a number of soft-law instruments. While it identifies shortcomings in impementation and enforcement, the paper concludes that a rights-based approach could be enhanced by greater engagement with existing human rights treaties and greater implementation of soft-law principles, and that no new instrument is required.

The Unable Individual : The Actantial Analyses of Three Chinese Films and Discussion on Their Representations of the Individual’s Position in Contemporary Chinese Society

The thesis studies three contemporary Chinese films, Incense (Xianghuo 2003), Beijing Bicycle (Shiqi sui de danche, 2001), and South of the Clouds (Yun de nanfang, 2004). The aim of the thesis is to find out how these films represent the individual, his relationships with others, and his possibilities in society. The films all portray a male individual setting out to pursue a goal, facing one obstacle after the other in the process, and in the end failing to achieve his goal. The other characters in the films are also primarily either unable or unwilling to help the lead character. In the thesis these features of the films are analysed by applying A.J. Greimas’s structuralist semiotic theory about the actantial structure of discourses. The questions about the individual’s position are answered by defining which instances in the films actually represent the actantial positions of the sender, receiver, subject, object, helper and opponent. The results of the actantial analyses of the three films are further discussed in the light of theories regarding individualization. The focus is on the theories of Ulrich Beck, Elisabeth Beck-Gernsheim and Zygmunt Bauman, who see a development towards individualization in societies following the disintegration of traditional social structures. For the most part, these theories do seem to be applicable to the films’ representations of the individual’s position, especially regarding the increased responsibility of the individual. For example, the position of the family is represented as either insignificant or negative in all of the films, which fits with the description of the individualized society, contradicting the idea of traditional Chinese society. On the other hand, the identities and goals of the characters in the films are not represented as fragmented in the way the theories would suggest.

Fishery biology and management of Protonibea diacanthus (Sciaenidae) aggregations in far Northern Cape York Peninsula waters

The sciaenid Protonibea diacanthus is a large, long-lived predatory fish of inshore northern Australian waters, which forms annual aggregations that are fished extensively by traditional (subsistence) and recreational fishers. There are now widespread concerns that the resource is being overexploited. Indigenous fishers of the Cape York Northern Peninsula Area (NPA) relate that large adult fish (up to 1500 mm total length (TL)) made up the bulk of the catch from the sciaenid aggregations until about 1994. In contrast, sexually mature P. diacanthus comprised only a small component (12 fish out of 270=4.4%) examined in a 1999–2000 sampling programme that was biased towards the largest individuals available. At 790 mm TL, the minimum size at first maturity for female P. diacanthus in this study is much smaller than the 920 mm TL reported previously in Queensland waters. Developing ovaries were observed in specimens sampled from sciaenid aggregations which formed in NPA waters between May and September 2000. However, no fish with ripe or spent gonads were found in the study, so the current timing and location of the spawning season for P. diacanthus in the region remain unknown. Food items observed in the analysis of the diet of P. diacanthus from the NPA included a variety of teleosts and invertebrates. The range of animal taxa represented in the prey items support the description of an ‘opportunistic predator’ attributed to the species. In our sampling, the stomach contents of fish caught during the time of the aggregation events did not differ from those observed at other times of the year. A total of 114 P. diacanthus were tagged and released at aggregation sites during the study period, and 3 fish (2.6%) were subsequently recaptured. The low rate of tag returns from the wild stock tagging programme, both in this study (2.6%) and from recreational fisher tag/release programmes for the sciaenid elsewhere in Queensland (6.5%), were not explained by tag loss nor mortality, given the high retention rate of tags and the zero mortality seen in tank trials. In response to the biological findings from this study, indigenous community councils of the NPA imposed a 2-year fishing moratorium for P. diacanthus. Surveys at aggregation sites in 2002 and 2003 established that much larger fish (mean size 103.5 cm TL) were again present on the grounds, albeit in very low numbers. These recent preliminary results highlight the critical need for continued monitoring and management of the P. diacanthus fishery in the NPA, if prospects for resource recovery are to be realised. The NPA initiative has provided a rare opportunity to negotiate a co-management strategy, based on scientific data and traditional knowledge, for the recovery of a cultural and economically significant fished resource.

Human Rights in Action

In the post-World War II era human rights have emerged as an enormous global phenomenon. In Finland human rights have particularly in the 1990s moved from the periphery to the center of public policy making and political rhetoric. Human rights education is commonly viewed as the decisive vehicle for emancipating individuals of oppressive societal structures and rendering them conscious of the equal value of others; both core ideals of the abstract discourse. Yet little empirical research has been conducted on how these goals are realized in practice. These factors provide the background for the present study which, by combining anthropological insights with critical legal theory, has analyzed the educational activities of a Scandinavian and Nordic network of human rights experts and PhD students in 2002-2005. This material has been complemented by data from the proceedings of UN human rights treaty bodies, hearings organized by the Finnish Foreign Ministry, the analysis of different human rights documents as well as the manner human rights are talked of in the Finnish media. As the human rights phenomenon has expanded, human rights experts have acquired widespread societal influence. The content of human rights remains, nevertheless, ambiguous: on the one hand they are law, on the other, part of a moral discourse. By educating laymen on what human rights are, experts act both as intermediaries and activists who expand the scope of rights and simultaneously exert increasing political influence. In the educational activities of the analyzed network these roles were visible in the rhetorics of legality and legitimacy . Among experts both of these rhetorics are subject to ongoing professional controversy, yet in the network they are presented as undisputable facts. This contributes to the impression that human rights knowledge is uncontested. This study demonstrates how the network s activities embody and strengthen a conception of expertise as located in specific, structurally determined individuals. Simultaneously its conception of learning emphasizes the adoption of knowledge by students, emphasizing the power of experts over them. The majority of the network s experts are Nordic males, whereas its students are predominantly Nordic females and males from East-European and developing countries. Contrary to the ideals of the discourse the network s activities do not create dialogue, but instead repeat power structures which are themselves problematic.

Immigrant Associations in the Metropolitan Area of Finland : Forms of Mobilisation, Participation and Representation

This study examines the role of immigrant associations in the societal and political integration of immigrants into Finnish society. The societal focus is on the ability of immigrant associations to mobilise their ethnic group members to participate in the socio-economic, cultural and political domains of Finnish society and in certain cases even beyond. The political integrative aims are the opportunities of immigrant associations to participate and represent the interests of their ethnic group in local and national policy making. This study focuses on associations in the Metropolitan Area of Finland, (Espoo, Helsinki and Vantaa).The qualitative research consisted of 71 interviews conducted with members of immigrant associations and civil servants. These interviews were mainly semi-structured, including some additional open-ended questions. Additional data consisted of documents, planning reports and of follow-up enquiries. -- In the analysis of the data I categorised thirty-two immigrant associations according to the activity forms and the description of the goals by the members. The four categories consisted of integrative, societal, ethno-cultural and transnational immigrant associations. Most of the immigrant associations belonged to the integrative category (15 of 32 associations). On the one hand the aims of these associations are to provide access for their ethnic group members into Finnish society, while on the other to strengthen the ethnic identity of their members by organising ethno-cultural activities. The societal associations only focused on activities with the objective of including immigrants into the Finnish labour market and educational system. The goal of ethno-cultural associations was to strengthen the ethnic identity of their ethnic group members. The transnational associations aimed at improving the living conditions of women and children in the members' country of origin. The possibilities for immigrant associations to mobilise their members depends partly on external financing. Subsidies have been allocated for societal activities in particular. There remains a risk of the crowding out of ethno-cultural activities: something which has already taken place in several European countries. Immigrant associations aim to strengthen the identity of immigrants mainly by organising social and ethno-cultural activities. Another important target was to provide peer support and therapy courses. Additionally, immigrant women's associations offer assistance to women who have encountered violence by providing counselling and in some cases access to shelter. The data showed that there is an ever growing need to pay heed to the well-being of women, children and elderly immigrants. The participation of immigrant associations in the municipalities' integrative issues takes place mainly through cooperative projects. Until the end of the 1990s there had not been much cooperation. The problem with the projects was that they had mainly been managed by civil servants, whereas members from immigrant associations had remained in a more passive position. Representation of immigrant associations in councils has been fairly weak. Immigrant associations are included in the multicultural councils of Espoo and Vantaa, but only in the planning stages. The municipality of Helsinki does not include immigrant associations due to the large number of organisations which causes problems in finding fair, democratic representation. At the national level, the ‘Advisory Board for Ethnic Relations’ – ETNO didn’t chose its members based on membership of ethnic associations, but based on belongingness to one of the larger language groups spoken by the foreign population in Finland. Since ETNO’s third period (2005-2007), the representatives of immigrant associations and ethnic minority groups have been chosen from proposed candidates. Key words: immigrant associations, integration, mobilisation, participation, representation, the Metropolitan area of Finland, immigrant (women), civil servants

Survival in the Rainforest : Change and Resilience among the Punan Vuhang of Eastern Sarawak, Malaysia

This dissertation concerns the Punan Vuhang, former hunter-gatherers who are now part-time farmers living in an area of remote rainforest in the Malaysian state of Sarawak. It covers two themes: first, examining their methods of securing a livelihood in the rainforest, and second looking at their adaptation to a settled life and agriculture, and their response to rapid and large-scale commercial logging. This study engages the long-running debates among anthropologists and ecologists on whether recent hunting-gathering societies were able to survive in the tropical rainforest without dependence on farming societies for food resources. In the search for evidence, the study poses three questions: What food resources were available to rainforest hunter-gatherers? How did they hunt and gather these foods? How did they cope with periodic food shortages? In fashioning a life in the rainforest, the Punan Vuhang survived resource scarcity by developing adaptive strategies through intensive use of their knowledge of the forest and its resources. They also adopted social practices such as sharing and reciprocity, and resource tenure to sustain themselves without recourse to external sources of food. In the 1960s, the Punan Vuhang settled down in response to external influences arising in part from the Indonesian-Malaysian Confrontation. This, in turn, initiated a series of processes with political, economic and religious implications. However, elements of the traditional economy have remained resilient as the people continue to hunt, fish and gather, and are able to farm on an individual basis, unlike neighboring shifting cultivators who need to cooperate with each other. At the beginning of the 21st century, the Punan Vuhang face a new challenge arising from the issue of rights in the context of the state and national law and large-scale commercial logging in their forest habitat. The future seems bleak as they face the social problems of alcoholism, declining leadership, and dependence on cash income and commodities from the market.