Faculty of Law, University of Oslo 4 Nov. 2013 LLM Lecture ......Ruppel, Oliver C. and Ruppel-Schlichting, Katharina (Eds), Environmental Law and Policy in Namibia – Towards Making

Fakulteit Regsgeleerdheid •

Faculty of Law

Faculty of Law, University of Oslo 4 Nov. 2013

LLM Lecture: Human Rights and the Environment

Prof. Dr. Oliver C. Ruppel

Professor of Law Faculty of Law, University of Stellenbosch

South Africa

2

Relevant Literature •  Ruppel, Oliver C., (2013), Human Rights and the Environment, in:

Ruppel, Oliver C. and Ruppel-Schlichting, Katharina (Eds), Environmental Law and Policy in Namibia – Towards Making Africa the Tree of Life, Windhoek & Essen, Orumbonde Press & Welwitschia Verlag, 401–420.

•  UNEP & OHCHR, (2012), Human Rights and the Environment, Rio+20: Joint Report, http : / /www.unep.org/environmenta lgovernance/Porta ls /8/JointReportOHCHRandUNEPonHumanRightsandtheEnvironment.pdf

•  Ruppel, Oliver C., (2010), Environmental Rights and Justice under the Namibian Constitution, in: Bösl, Anton, Horn, Nico and Du Pisani, André, Constitutional Democracy in Namibia – A Critical Analysis After Two Decades, Windhoek, Macmillan Education Namibia, 323–360.

© Prof Oliver C Ruppel

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Contents

•  Human Rights and Environmental Law: The Nexus

•  The International Level •  Regional Levels (Aspects from the EU and AU) •  Right to Environment in National Constitutions •  Human Rights and the Environment in Namibia

and in South Africa


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THE LINK BETWEEN HUMAN RIGHTS AND ENVIRONMENTAL LAW


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2 Overlapping bodies of law


Environmental Law

Human Rights Law

6

Tensions?

Environmental Protection

Right to Develop


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Ideally: Interaction

Environmental Law and Human Rights Law should be

applied cumulatively and

interact like gears:


8 8

Two objectives of Environmental Justice

Rights and responsibilities regarding the utilisation of

environmental resources are distributed with greater

fairness globally and domestically

reduce the overall amount of

environmental damage globally and domestically

© Dr. O.C. Ruppel

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Human Rights

•  basic rights and freedoms to which all humans are entitled

•  defined by various law making bodies: -  internationally (globally and regionally) -  nationally and -  sometimes locally


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Human Rights Categories

•  First Generation Rights

•  Second Generation Rights

•  Third Generation Rights

•  Fourth Generation Rights? à controversy human rights in the information society: “communication rights”


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Categorisation Criticised

•  difficulties in exact allocation

•  human rights are universal and interdependent

•  some rights can easily fall in more than one category


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First Generation Rights

Civil and Political Rights:

Traditional rights of the individual against the state

aimed at the protection of the citizen against arbitrary actions of the state


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1st Generation Rights: Examples

Rights to •  Life •  Liberty •  Security •  Privacy •  Fair Trial •  Equality •  Dignity

Freedoms •  from Torture, Slavery

and Forced Labour •  of Religion, Belief and

Opinion •  of Expression •  of Movement •  of Association


14

Second Generations Rights

Social, Economic, and Cultural Rights

founded on the status of the individual as a member of society

impose a positive obligation on the state to provide or at least create conditions for access to those facilities which are considered essential for modern life


15

2nd Generations Rights: Examples

• Work •  fair remuneration •  Property •  housing •  health

•  education, •  benefit from

scientific advancements

•  participate in the cultural life of one’s choice


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Third Generation Rights

Solidarity Rights

These rights are collective in nature and depend upon international cooperation for

their achievement


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3rd Generation Rights: Examples

•  Right to peace

•  Right to humanitarian assistance

•  Right to development

•  The right to a clean and healthy environment?


18

The Importance of Human Rights

Human rights are a necessary prerequisite for •  every democratic society

•  the avoidance of social and political unrest, violence and conflict

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Important Characteristics of Human Rights

•  Universal Ø applied equally and without discrimination to all people

•  Inalienable Ø no one can have his or her human rights taken away other than in

specific situations (eg, the right to liberty can be restricted if a person is found guilty of a crime by a court of law)

•  I n d i v i s i b l e , i n t e r r e l a t e d a n d interdependent Ø  it is insufficient to respect some human rights and not others. Ø  In practice, the violation of one right will often affect the respect of

several other rights. Ø All human rights should therefore be seen as having equal importance


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Poverty

•  is at the centre of a number of human rights violations and

•  at the same time a major obstacle to achieving sustainable development and environmental protection


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1972 Stockholm Conference, Indian Prime Minister Indira Gandhi:

We do not want to impoverish the environment any further, but we cannot forget the grim of poverty of large numbers of people. When they themselves feel deprived how can we urge the preservation of animals? How can we speak to those who live ... in slums about keeping our oceans, rivers and the air clean when their own lives are contaminated at the source? Environment cannot be improved in conditions of poverty…


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A Healthy Environment: for everyone?

certain groups suffer disproportionately from e n v i r o n m e n t a l h a r m s a n d / o r a r e disproportionately denied environmental benefits due to discrimination:

•  Certain minority ethnic groups

•  Poor people

•  Least educated segments of society


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Right to Environment: Why?

Environmental harm •  climate change •  destruction of the ozone

layer •  desertification •  fresh water shortages •  pollution •  etc.

human rights


affects

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Facts and Figures (1)

• Globally, contaminated water remains the greatest single cause of human disease and death

• About 1.2 billion people still lack access to clean drinking water, 80 % of which are the rural poor


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•  2.4 billion people lack adequate sanitation

•  in many developing countries, poor health cond i t ions preva i l a s a resu l t o f contaminated water, poor sanitation, severe air pollution, malaria and other infectious diseases, and the spread of HIV/AIDS


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•  Two thirds of the world population will live in ‘water-stressed’ areas by 2025

•  In some cases groundwater levels are falling by one to three meters each year


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• 75% of the world’s energy is being produced by burning fossil fuels

• 2.4 million people dying each year globally from causes directly attr ibutable to a ir pol lut ion (according to WHO)


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•  toxic chemicals in our environment threaten our rivers and lakes, air, land, and oceans

•  environmental exposure causes almost a quarter of all diseases.


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•  There are already an estimated 25 million environmental refugees resulting from

•  changing rain patterns, floods, storms and rising tides and this figure is likely to rise significantly


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Environmental harm may affect (1)

Right to Life

can be linked to any environmental disruption that directly contributed to the loss of lives

e.g. air pollution causing 2.4 million deaths per year


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Right to Health

is often violated in cases of pollution of air, land or water


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Right to Water

pollution of water resources may affect the

right to (access to clean) water


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Right to Food

due to environmental disruption, the right to

physical and economic access to adequate food, is progressively under pressure


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Right to Development

Sustainable development recognises that environmentally destructive economic

progress does not produce long-term societal progress


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Right to Property

E.g. rising sea levels à more and more people living on islands and in coastal areas,

have and will be deprived of (parts of) their property


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Right to Shelter and Housing

when environmental degradation displaces

individuals and communities or compels them to live in unhealthy, hazardous conditions


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Right to Work

along with environmental disruption often comes deprivation of the right to work. An

example would be industrial overfishing putting small local fishermen out of work


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Right to Culture, Family life and Rights of Indigenous People

the UN Declaration on the Rights of Indigenous Peoples, for the first time

recognises the conservation and protection of the environment and resources as a human

right © Prof Oliver C Ruppel

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Rights and Equity, non-discrimination

impacts of environmental harms are expected to be bigger on the poorer parts than in the

more wealthier parts of the world


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Women and Children’s Rights

are even more impacted by environmental disruption than men

Children are particularly vulnerable to toxics, bacterial and viral contaminationand because

their immune systems have not fully been developed


41

Main Problems Posed By International Environmental Law (1) Conflict between economy and ecology:

Economy and ecology invariably clash when a project has environmental implications, and the state has to weigh up various justified interests when deciding whether to approve it.


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Main Problems Posed By International Environmental Law (2)

Fragmentation of environmental law:

The provisions of environmental law have their roots in many different areas of life (and law) and display strong regional differences


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Main Problems Posed By International Environmental Law (3)

Non-compliance:

Even in areas where clear legal rules do exist, the hoped-for successes do not materialise because states do not respect those rules or do not respect them sufficiently.


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THE INTERNATIONAL LEVEL


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1972 Stockholm Declaration

Principle I:

“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations”


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Universal Declaration on Human Rights (1948) (1)

• Non-binding but

• Many provisions considered to be customary international law


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Universal Declaration on Human Rights (2)

Article 25: "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services..."


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International Covenant on Economic, Social and Cultural Rights – ICESCR (1966) •  Right to safe and healthy working

conditions (Article 7 b)

•  Rights of children and young persons to be free from work harmful to their health (Article 10-3)

•  The right to health (Article 12) calls on States parties to take steps for "the improvement of all aspects of environmental and industrial hygiene…”


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Right to Water under the ICESCR

In 2002, the UN Committee on Economic, Social and Cultural Rights concluded that there was a human right to water embedded in Article 11 of the ICESCR, which defined the right to livelihood as including adequate food, clothing and housing.


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Right to Water under the ICESCR

•  The General Comment on the right to water was adopted by this Committee in 2002

•  à 145 countries ratified the Covenant and agree that the human right to water entitles everyone to sufficient, affordable, physically accessible, safe water acceptable for personal and domestic use

•  (and that they are required to develop mechanisms to ensure that this goal is realised!)


51

CEDAW (Convention on the Elimination of All Forms of Discrimination against Women (1979)

Obl iges States part ies to e l iminate discrimination against women, particularly in rural areas, to ensure that women enjoy adequate living conditions , part icularly in relat ion to housing, sanitation, electricity and water supply…" (Article 14 (2)(h))


52 © Dr Oliver C Ruppel Human Vulnerability & Environment

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CRC (Convention on the Rights of the Child (1989) Article 24

parties shall take appropriate measures to combat disease and malnutrition through the provision of adequate nutritious foods and c lean dr ink ing water , taking into consideration the dangers and risks of environmental pollution. Article 24(2)(c).

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United Nations Declaration on the Rights of Indigenous Peoples (2007)

Article 29:

“1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources…”


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UN Environmental Constitution For The World (1)

http://www.uncsd2012.org/content/documents/IUCN%20Intl%20Covenant%20on%20Env%20and%20Dev%20EPLP-031-rev3.pdf


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Drafted by

•  IUCNAEL (the Environmental Law Programme of the International Union for the Conservation of Nature and Natural Resources) in cooperation with

•  ICEL (the International Council of Environmental Law)


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•  Work has been going on since 1995

•  The 4th edition was issued to UN member states on 22 September 2010

•  The document is intended to become a permanent binding treaty intended to supersede all existing national laws…


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Objective:

to provide a comprehensive legal framework with the aim of achieving env ironmenta l conservat ion , a n indispensable foundation for sustainable development



Climate Change & Human Rights?

Climate Change & Interna/onal Human Rights Law

•  efforts to place human rights at the centre of any future climate change dispensa5on have only recently started to become more focused

•  human rights obliga5ons can provide a legal baseline for how climate change is tackled and what must be protected from its impacts


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THE REGIONAL LEVEL (ASPECTS FROM AFRICA AND EU)


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Treaty of the European Union

Art. 3 provides as an objective of the EU, that it shall promote inter alia harmonious, equitable and sustainable development with a high level of environmental protection and improved environmental quality.


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European Convention on Human Rights (1)

So far, no explicit codification of a right to a healthy environment

(on 16 June 2010 European Ministers refused to codify the Human Right to a healthy and viable Environment into the European Convention on Human Rights)


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But: European Court of Human Rights has laid down a number of judgements stating that:

Article 8 of the Convention on the right to private and family life imposes positive e n v i r o n m e n t a l o b l i g a t i o n s o n governments


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Article 8: Right to respect for private and family life

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”


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Based on Article 8, Governments are required •  to employ relevant environmental

information in decision-making •  to be legally responsible for preventing

serious damage to their citizen’s health caused by pollution

•  to comply with domestic environmental law


66 © Dr Oliver C Ruppel

Aarhus Convention (1998)

= Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters

•  ratified by 45 states and the European Union

•  all of the ratifying states are in Europe and Central Asia

67

Aarhus Convention (2)

Preamble

Every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations


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The African Union (AU)

Members:

•  54 African states •  Morocco left the AU's

p r e d e c e s s o r ( t h e Organization of African Unity) in 1984

•  4 members currently suspended: Madagascar (2009), Guinea Bissau (2012), Egypt (2013), Central African Republic (2012)


Establishment: as the OAU May 25, 1963 as the African Union July 9, 2002 Area - Total 29,757,900 km² 11,489,589 sq mi Population 2011 estimate 1,012,571,880 (2nd most populous continent)

69

The African Charter for Human and Peoples’ Rights

•  explicitly incorporates a human right to environment

• Article 24: “All peoples shall have the r ight to a genera l sat is factory environment favourable to their development”


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Article 24 African Charter for Human and Peoples’ Rights

• à has been addressed by the African Commission on Human and Peoples’ Rights

•  (established in 1987 with a mandate to protect and promote human rights and empowered to consider complaints from individuals and States)


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The Commission on Article 24:

right to a satisfactory environment puts government under the obligations to: •  take reasonable measures to prevent

pollution and ecological degradation •  promote conservation and ensure

ecological sustainable development and the use of natural resources

•  undertake environmental and social impact assessments prior to industrial development


72 © Prof Oliver C Ruppel

The Case of the Ogoni People and Royal Dutch/Shell in Nigeria

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Case: Royal Dutch/Shell in Nigeria

• The case addresses these ques5ons: • Should a foreign investor interfere in the domes5c poli5cs of a sovereign state?

• How to manage human rights aAacks?


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Main environmental problems

•  isolated but frequent oil spills (111 between 1975 and 1984)

•  drainage of contaminated water into the waterways

•  emissions from the flaring of natural gas at the pumping sites

•  plant and animal life destroyed •  contribution to global warming



Shell claimed that…

•  …the rapidly growing population in the Delta region is the principal contributor to such env i ronmen t a l p rob l ems a s deforestation, erosion, and overfarming

•  Oil spills: some 77 of the 111 oil spills in the Delta were due to sabotage by local people (seeking compensation for damages, employment opportunities)


Nigeria, Shell and the Ogoni

Since Shell began drilling oil in Ogoniland in the Niger Delta in 1958, the people of Ogoniland

•  have had pipelines built across their farmlands and in front of their homes

•  suffered endemic oil leaks from these very pipelines

•  have been forced to live with the constant flaring of gas


The United Nations on the Ogoni Case

•  UN Special Rapporteur's report on Nigeria (released 4/15/98) accused Nigeria and Shell of abusing human rights and failing to protect the environment in oil producing regions, and called for an investigation into Shell.


The United Nations on the Ogoni Case

•  The report condemned Shell for a "well armed security force which is intermittently employed against protesters"

•  It was unusual both because of its frankness and its focus on Shell, instead of only on member countries


Decision of the African Commission (I)

In 2001, the AU Commission concluded consideration of a communication which dealt with alleged violations of human rights of the Ogoni people in Nigeria…

Communication 155/96. The Social and Economic Rights Action Center and the Center for Economic and Social Rights / N i g e r i a ; a v a i l a b l e a t h t t p : / /www . a chp r . o r g / en g l i s h / _ i n f o /decision_article_24.html


Decision of the African Commission (II)

•  The African Commission found several violations of the African Charter

•  It appealed to the new civil government in Nigeria to protect fully the environment, health and livelihood of the people in Ogoniland

•  Government should, inter alia, -  conduct an investigation into the human rights

violations -  undertake a cleanup of land and rivers polluted and

damaged by the activities of the oil operations


The Nigerian High Court on the Ogoni Case

Judgement of the Nigerian High Court on November 14, 2005 ordering Shell Nigeria and the Nigerian National Petroleum Corporation (NNPC)

to stop gas flaring, as gas flaring violates guaranteed constitutional rights to life and

dignity


In 2009…

•  Shell agreed to pay US$15.5m in settlement of a legal action…

•  This was reached on the eve of the trial in a federal court in New York

•  one of the largest payouts agreed by a multinational corporation charged with human rights violations


In 2009…

Out of the $15.5m settlement, $5m will be used to set up a trust called Kiisi – meaning "progress" in the Ogoni Gokana language – to support educational and other initiatives in the Niger delta

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RIGHT TO ENVIRONMENT IN NATIONAL CONSTITUTIONS


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Different Pathways to Constitutional Recognition of Environmental Concerns

1.  Government duty to protect the environment

2.  Individual right to a healthy environment

3.  I n d i v i du a l du t y t o p ro t e c t t he environment

4.  Procedural environmental rights

5.  No recognition


86

Prevalence of Environmental Protection Provisions in National Constitutions

31

84

94

142

0 20 40 60 80 100 120 140 160

Procedural Environmental Rights

Individual Duty to Protect the Environment

Individual Right to a Healthy Environment

Government Duty to Protect the Environment

Number of Countries

Type

of C

onst

itutio

nal P

rovi

sion

Source: Boyd (2012)

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Benefits of Constitutional Environmental Rights (1)

•  Stronger environmental laws and policies

•  Improved implementation and enforcement

•  G r e a t e r c i t i z e n p a r t i c i p a t i o n i n environmental decision making


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Benefits of Constitutional Environmental Rights (2)

•  Increased accountability

•  Reduction in environmental injustices

•  A level playing field with social and economic rights

•  Better environmental performance


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From Constitution to Environmental Outcome


•  Constitution

•  Legislation

•  Regulations

•  Administrative Agencies

•  Policies /Practices / Procedures

•  Implementation

•  Changes in Societal Behaviours

•  ENVIRONMENTAL OUTCOMES

90

Potential Challenges for Constitutional Environmental Rights (1)

•  too vague to be useful

•  redundant because of existing human rights and environmental laws

•  threat to democracy because shifting power from elected legislators to judges (judicial activism)


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Potential Challenges for Constitutional Environmental Rights (2)

•  difficult to enforce

•  likely to cause a flood of litigation

•  likely to be ineffective


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Nations recognising the constitutional right to a healthy environment

•  since the mid-1970s, 92 countries have granted constitutional status to this right

•  recognition of environmental rights has grown rapidly over the past 50 years


93 © Prof Oliver C Ruppel Source: Boyd (2012)

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Nations recognising the right to a healthy environment in constitutions, laws, or international agreements

•  As of 2012, 177 of the world's 193 UN member nations recognise this right through -  their constitution -  environmental legislation -  court decisions -  or ratification of an international agreement

•  The only remaining holdouts are: -  United States, Canada, Japan, Australia, New

Zealand, China, Oman, Afghanistan, Kuwait, Brunei Darussalam, Lebanon, Laos, Myanmar, North Korea, Malaysia, and Cambodia…


95 © Prof Oliver C Ruppel Source: Boyd (2012)

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Kenya 2010 Constitution

PREAMBLE

We the people of Kenya –

RESPECTFUL of the environment, which is our heritage, and determined to sustain it for the benefit of future generations


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Part 2: Rights and fundamental freedoms

42. Every person has the right to a clean and healthy environment, which

includes the right— (a) to have the environment protected for the

benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and

(b) to have obligations relating to the environment fulfilled under Article 70.


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Chapter 5: Land and Environment

Enforcement of environmental rights

70. (1) If a person alleges that a right to a clean and healthy environment

recognised and protected under Article 42 has been, is being or is likely to be, denied, violated, infringed or threatened, the person may apply to a court for redress in addition to any other legal remedies that are available in respect to the same matter…


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Question

Why is Kenya so advanced?


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Germany (1)

• 1949 Basic Law for the Federal Republic of Germany (Grundgesetz) contains no fundamental subjective environmental right

• But


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Germany (2)

Article 20(a) provides for state responsibility for the environment in form of an objective constitutional norm (Staatsziel Umweltschutz)


102

Germany (3)

Article 20a [Protection of the natural foundations of life and animals]

“Mindful also of its responsibility toward future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.” © Prof Oliver C Ruppel

103

Germany (4)

•  Individuals cannot base legal claims on the non-performance of government before the courts

•  But: Legislature, executive, judiciary and all bodies of government are legally bound to be directed by Article 20(a)


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HUMAN RIGHTS AND THE ENVIRONMENT IN THE NAMIBIAN CONSTITUTION


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Chapter 3 of the Constitution

in its Chapter 3 on fundamental human rights and freedoms the Namibian Constitution does not explicitly mention a right to a clean and healthy environment


106

Nevertheless

the Namibian Constitution can be regarded as being progressive in

terms of environmental protection


107

Environmental protection

is contained in the Namibian Constitution within the Chapter on

“Principles of State Policy”


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Article 95(1)

“The State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at … maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and the utilisation of living natural resources on a sustainable basis for the benefit of all Namibians…”


109

Principles of State Policy

•  not legally enforceable •  serve as societal goals in making and

applying laws to give effect to the fundamental objectives of the different principles

•  must be employed in the interpretation of Namibian law and guide the state in its decision-making processes

(Article 101) © Prof Oliver C Ruppel

110

Article 100: Sovereign Ownership of Natural Resources

•  establishes sovereign state ownership of natural resources not under the control of others

•  this entails that the state should accordingly take environmentally related responsibility with a special focus on the principle of sustainability and respect for the rights of present and future generations


111

Article 144: International Law

•  Unless otherwise provided the general rules of public international law and international agreements binding upon Namibia under this Constitution form part of the law of Namibia.

• à Public international law is ab initio part of the law of Namibia and needs no transformation or subsequent legislative act to become so


112

Article 25: Enforcement of Fundamental Rights and Freedoms

persons who claim that a fundamental right or freedom guaranteed by the Constitution has been infringed or threatened are entitled

-  to approach a competent Court to enforce or protect such a right or freedom


113

Namibian Court Structure

•  Community Courts (apply customary law)

•  Magistrates Courts (apply common law 1st instance)

•  Magistrates Courts (appeal customary law 2nd instance)

•  High Court

•  Supreme Court (also constitutional chamber)

____________________________________________

•  SADC Tribunal

114

Article 25: Enforcement of Fundamental Rights and Freedoms

•  persons who claim that a fundamental right or freedom guaranteed by the Constitution has been infringed or threatened are entitled - may approach the Ombudsman to provide them with such legal assistance or advice as they require


115

The Ombudsman of Namibia

has a specific environmental mandate


116

Mandates for the Office of the Ombudsman

• Human Rights: Article 91 (a) of the Constitution and Section 3(1)(a) of the Act

• Administrative Practices Article 91 (b) of the Constitution and Section 3(1)(b) of the Act

• Environment Article 91 (c) of the Constitution and Section 3(1)(c) of the Act


117

South Africa


118

International Law under the SA 1996 Constitution

s. 39 Interpretation of Bill of Rights

(1) When interpreting the Bill of Rights, a court, tribunal or forum - (a) must promote the values that underlie an

open and democratic society based on human dignity, equality and freedom

(b) must consider international law (c) may consider foreign law


119

International Law (ss 231-233)

CHAPTER 14: GENERAL PROVISIONS

s. 231 International agreements

(4) Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.


120

International law under the 1996 SA Constitution

s. 232 Customary international law

Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.

s. 233 Application of international law

When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law



CHAPTER 2: Bill of Rights s. 24. Environment

(1) Everyone has the right: (a) to an environment that is not harmful to their health or well-

being; and (b) to have the environment protected, for the benefit of present

and future generations, through reasonable legislative and other measures that:

(i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of

natural resources while promoting justifiable economic and social development.

122

What is the nature of the environmental provision in the SA Constitution?


123

Components of Section 24

(1) Everyone has the right: (a) to an environment that is not harmful to their

health or well-being; and (b) to have the environment protected, for the

benefit of present and future generations, through reasonable legislative and other measures that:

(i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural

resources

while promoting justifiable economic and social development.


Fundamental right character

socio-economic right character

124

Who is “Everyone”?

•  Humans

à orthodox anthropocentric approach: regards environmental rights as being primarily concerned with people

•  Supported by National Environmental Management Act (NEMA) Section 2 (2): “[e]nvironmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably.”


125

“Everyone”…

à The locus standi requirement

Section 38 of the Constitution: -  (c) anyone acting as a member of, or in the

interest of, a group or class of persons; -  (d) anyone acting in the public interest; and -  (e) an association acting in the interests of its

members


126

Vertical and Horizontal Application of s 24

•  Everyone vs State (vertical application)? à (+)

•  Everyone vs individual legal persons (horizontal application)? à generally (+) but extent is subject to debate

•  Section 8 of the Constitution states that the Constitution applies to “all law” and that “[a] provision in the Bill of Rights binds natural and juristic persons to the extent that it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right’


127

Some SA Case Law Related to s. 24 •  HTF Developers (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2006 (5) SA 512

(T)

•  Hichange Investments (Pty) Ltd v Cape Produce Co (Pty) Ltd t/a Pelts Products, and Others 2004 (2) SA 393 (E)

•  Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC)

•  Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others 2007 (6) SA 4 (CC)

•  MEC, Department of Agriculture, Conservation and Environment and Another v HTF Developers (Pty) Ltd 2008 (2) SA 319 (CC)

•  Director: Mineral Development, Gauteng Region, and Another v Save the Vaal Environment and Others 1999 (2) SA 709 (SCA)

•  BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation and Land Affairs 2004 (5) SA 124 (W)

•  Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others 2001 (7) BCLR 652 (CC).


128

Other Constitutional Provisions Relevant for the Right to Environment

•  Locus standi clause s. 38

•  Just administrative action clause s. 33

•  Access to information clause s. 32

•  Property clause s. 25

•  Limitations clause s. 36

•  Interpretation of the Bill of Rights clause s. 39


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Summarising

•  Environmental human rights cannot be seen in isolation from other human rights

•  They are not only protected under various international conventions, but interlinked with many fundamental rights and freedoms

•  They are not only relevant under constitutional principles of state policy but beyond


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Human rights

•  must be justiciable and their protection must be secured through the courts

•  the judiciary is most essential in the protection and promotion of environmental human rights it leads the way in interpreting relevant legislation and settles disputes arising between citizens and/or between citizens and the state


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Unfortunately…

•  the inclusion of environmental concerns into human rights jurisdiction is still in its infancy in African jurisprudence

•  relevant rulings from other courts (European Court of Human Rights / Indian Supreme Court) may therefore be taken as examples when it comes to the link between human rights and environmental concerns…


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Thank you for your attention!


Documents

Faculty of Law, University of Oslo 4 Nov. 2013 LLM Lecture ......Ruppel, Oliver C. and Ruppel-Schlichting, Katharina (Eds), Environmental Law and Policy in Namibia – Towards Making