The role of human rights in environmental governance : the challenge of climate change

The role of human rights in environmental governance is increasingly gaining attention. This is particularly the case in relation to the challenge of climate change, where there is growing recognition of a real threat to human rights. This chapter argues in favour of greater reference to human rights principles in environmental governance. It refers to the experiences of Torres Strait Islanders to demonstrate the impact of climate change on human rights, and the many benefits which can be gained from a greater consideration of human rights norms in the development of strategies to combat climate change. The chapter also argues that a human rights perspective can help address the underlying injustice of climate change: that it is the people who have contributed least to the problem who will bear the heaviest burden of its effects.

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.

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

The numerous interconnections between the environment and human rights are well established internationally. It is understood that environmental issues such as pollution, deforestation or the misuse of resources can impact on individuals’ and communities’enjoyment of fundamental rights, including the right to health, the right to an adequate standard of living, the right to self‐determination and the right to life itself. These are rights which are guaranteed under international human rights law and in relation to which governments bear certain responsibilities. Further, environmental issues can also impact on governments’ capacity to protect and fulfil the rights of their citizens. In this way human rights and environmental protection can be constructed as being mutually supportive. In addition to these links between the environment and human rights, human rights principles arguably offer a framework for identifying and addressing environmental injustice. The justice implications of environmental problems are well documented and there are many examples where pollution, deforestation or other degradation disproportionately impact upon poorer neighbourhoods or areas populated by minority groups. On the international level, environmental injustice exists between developed and developing States, as well as between present and future generations who will inherit the environmental problems we are creating today. This paper investigates the role of human rights principles, laws and mechanisms 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 which are most adversely affected. Further, it suggests that the human rights enforcement mechanisms which exist at international law could be utilised to lend weight to claims for more equitable environmental policies.

A Human Rights Triumph? Dictatorship-Era Crimes and the Chilean Supreme Court

This article assesses the dramatic shift in Chilean Supreme Court jurisprudence toward accountability for crimes committed during the dictatorship and sets it within the context of judicial reform and political change. Chile's experience has been identified as emblematic of delayed justice, but an examination of key case law identifies the narrow scope and instability of Supreme Court decision-making. The Court has been uncharacteristically assertive in its application of human rights norms yet vulnerable to external influences. The Chilean example underscores the need for political leadership to address past violations in post-conflict societies. Political inertia impeded justice claims and, as a result, change required significant judicial innovation.

Courts and Consociations: Human Rights versus Power-sharing

Consociations are power-sharing arrangements, increasingly used to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts. Current examples include Belgium, Bosnia, Northern Ireland, Burundi, and Iraq. Despite their growing popularity, they have begun to be challenged before human rights courts as being incompatible with human rights norms, particularly equality and non-discrimination.

Courts and Consociations examines the use of power-sharing agreements, their legitimacy, and their compatibility with human rights law. Key questions include to what extent, if any, consociations conflict with the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements.

In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and then in Sejdic and Finci v Bosnia regarding the constitution established for Bosnia Herzegovina under the Dayton Agreement. The Court's decision in Sejdic and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in Belgium. This book accounts for this change and assess its implications. The problematic aspects of the current state of law are demonstrated. Future negotiators in places riven by potential or actual bloody ethnic conflicts may now have less flexibility in reaching a workable settlement, which may unintentionally contribute to sustaining such conflicts and make it more likely that negotiators will consider excluding regional and international courts from reviewing these political settlements.

Human rights and traditional values

A series of ‘traditional values’ resolutions, passed by the UN Human Rights Council in 2009, 2011, and 2012, were the result of a highly controversial initiative spearheaded by Russia. Do these ‘traditional values’ underpin human rights? If not, why are religious traditions or, indeed, any traditional values worth preserving at all? Why are they valuable from the point of view of adherents to that tradition? Should the larger society take into account the fact that a practice is based on tradition in deciding whether or not to override it in the name of human rights? Put more technically, in what does the normativity of tradition lie, for adherents and non-adherents of that tradition? These are the questions that this essay explores, in the context of the recent debates over the scope and meaning of human rights stimulated by the Human Rights Council Resolutions. Much of the support for the Resolutions comes from what can broadly be called the global South. In several books, particularly Human Rights, Southern Voices, and General Jurisprudence: Understanding Law from a Global Perspective William Twining has explored the question of how to reconcile human rights norms and belief systems embedded in the global South (including ‘traditional values’), and in doing so has drawn particular attention to intellectuals from that part of the world, in particular Francis Deng, Yash Ghai, Abdullahi An-Na’im, and Upendra Baxi. I suggest that those concerned to recognize the legitimate concerns that significant sections of the global South have about the human rights project, concerns reflected in the ‘traditional values’ Resolutions would do well to pay more attention to the ‘Southern voices’ on whom Twining rightly focuses attention.

Dignity and human rights in correctional practice

Interventions with offenders have a normative layer as well as a scientific basis and therefore it is not possible to quarantine ethical questions from discussions of best practice. My aim in this paper is to provide an expanded ethical canvass from which to approach correctional practice with offenders. The cornerstone of this broader ethical perspective will be the concept of human dignity and its protection by human rights norms and theories. I also explore the relationship between responses to crime and offender rehabilitation based on an enriched theory of punishment that is sensitive to offenders’ moral equality and their attendant rights.

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TOWARD A POLITICAL CONCEPTION OF MINORITY RIGHTS: RECONCILING SOVEREIGNTY, HUMAN RIGHTS AND MINORITY CLAIMS

The question that I will explore in this research dissertation is whether one can defend the rights of homeland minorities as a progressive extension of the existing norms of human rights. This question calls for several deeper inquiries about the nature, the function and the underlying justifications for both human rights and minority rights. In particular, this research project will examine the following issues: on what normative grounds the available norms of human rights and minority rights are justified; if there is any methodic way to use the normative logic of human rights to support substantial forms of minority claims, such as the right to self-determination; whether human rights can take the form of group rights; and finally, whether there is any non-sectarian basis for justifying the minority norms, which can be acceptable from both liberal and non-liberal perspectives. This research project has some implications for both theories of minority rights and human rights. On the one hand, the research employs the topic of minority rights to shed light on deficiencies of the existing political theories of human rights. On the other hand, it uses the political theory to shed light on how existing theories of minority rights could be improved and amended. The inquiry will ultimately clarify how to judge the merit of the claim that minority rights are or should be a part of human rights norms.

Sexual Minority Rights as Human Rights: Mapping the Evolution of LGBT Norms in Swedish and U.S. Foreign Policy

Thesis (Ph.D.)--University of Washington, 2016-06

Courts and Consociations:How human rights courts may destabilize power-sharing settlements

We consider the use of consociational arrangements to manage ethno-nationalist, ethno-linguistic, and ethno-religious conflicts, and their compatibility with non-discrimination and equality norms. Key questions include to what extent, if any, consociations conflict with the dictates of global justice and the liberal individualist preferences of international human rights institutions, and to what extent consociational power-sharing may be justified to preserve peace and the integrity of political settlements. In three critical cases, the European Court of Human Rights has considered equality challenges to important consociational practices, twice in Belgium and, most recently, in Sejdic and Finci, concerning the constitutional arrangements established for Bosnia Herzegovina under the Dayton Agreement. The Court’s recent decision in Sejdic and Finci has significantly altered the approach it previously took to judicial review of consociational arrangements in the Belgian cases. We seek to account for this change and assess its implications. We identify problematic aspects of the judgment and conclude that, although the Court’s decision indicates one possible trajectory of human rights courts’ reactions to consociations, this would be an unfortunate development because it leaves future negotiators in places riven by potential or manifest bloody ethnic conflicts with considerably less flexibility in reaching a settlement. That in turn may unintentionally contribute to sustaining such conflicts and make it more likely that advisors to negotiators will advise them to exclude regional and international courts from having standing in the management of political settlements.

Truth Recovery and Transitional Justice: Deferring human rights issues

This book investigates why some societies defer the solution of transitional justice issues, such as the disappeared/missing, even after successful democratic consolidation. It also explains why the same societies finally decide to deal with these human rights issues. In short, it considers the interesting and understudied phenomenon of post-transitional justice. The prolonged silences in Spain, Cyprus and Greece contradict the experience of other countries -- such as South Africa, Bosnia, and Guatemala -- where truth recovery for disappeared/missing persons was a central element of the transition to peace and democracy. Despite democratization, the exhumation of mass graves containing the victims from the violence in Cyprus (1963-1974) and the Spanish civil war (1936-1939) was delayed until the early 2000s, when both countries suddenly decided to revisit the past. Cyprus and Spain are not alone: this is an increasing trend among countries trying to come to terms with past violence. Interestingly, despite similar background conditions, Greece is resisting the trend, challenging both theory and regional experience. Truth Recovery and Transitional Justice considers three interrelated issues. First, what factors can explain prolonged silence on the issue of missing persons in some transitional settings? Second, which processes can address the occasional yet puzzling transformation of victims’ groups from opponents of truth recovery to vocal pro-reconciliation pressure groups? Third, under which conditions is it better to tie victims’ rights to an overall political settlement? The book looks at Spain and Cyprus to show how they have attempted to bring closure to deep trauma by exhuming and identifying their missing, albeit under considerably different conditions. It then probes the generalizability of the conclusions on Spain and Cyprus by looking at the Greek experience; oddly, despite similar background conditions, Greece remains resistant to post-transitional justice norms. Interestingly, each case study takes a different approach to transitional justice.

Time for Reform? Refugees, Asylum-seekers and Protection Under International Human Rights Law

The aim is to explore the protection that international human rights law offers to refugees, asylum-seekers, and the forcibly displaced. The ambition of the global rights framework is to guarantee a defined range of rights to all human beings, and thus move the basis for normative entitlement from exclusive reliance on national membership to a common humanity. This comprehensive and international perspective remains formally tied to states - acting individually or collectively - in terms of creation and implementation. The norms must find an entry point into the empirical world, and there must be clarity on responsibilities for practical delivery. It should remain unsurprising that the expectations raised by the normative reach of the law are frequently dashed in the complex and difficult human world of instrumental politics, power, and conflict. The intention here is to outline the international human rights law context, and indicate the value and limitations for the protection of refugees and asylum-seekers. A question is then raised about possible reform.

The Pluralism of Human Rights Adjudication

This chapter considers judicial reasoning in ‘human rights’ cases. Are there techniques that courts share, or are different techniques adopted, to decide how human rights, in this broader sense, are protected? The chapter aims to adopt a comparative approach to the examination of this reasoning, through a detailed examination of similar human rights issues in a range of jurisdictions. The aim of the chapter is to examine the similarities and divergences in the reasoning developed by courts when addressing comparable human rights questions. The chapter shows that human rights reasoning involves distinctive and particular forms of legal reasoning, but that its form and content differ significantly
from jurisdiction to jurisdiction, and over time within jurisdictions. Building upon these findings, the chapter explores what these similarities and differences tell us about the nature, and the direction of travel, of human rights law which comprises notionally universal norms.

A Synergistic Approach to Human Rights and Public Health Ethics: Effective or a Source of Conflict?

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