Human Rights and Sustainability

To live in dignity, all human being needs a healthy environment. A safe, clean, healthy and sustainable environment is thus integral to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation. Increasingly, the intertwine between human rights and the environment is being acknowledged and recognised.

Routledge series of Sustainability recently publish an edited volume entitled Human Rights and Sustainability: Moral responsibilities for the future. The editors of this book, Gerhard Bos, Marcus Düwell, develop the idea of environmental obligations as long-term responsibilities in the context of human rights. The book proposes that human rights require recognition that, in the face of unsustainable conduct, future human persons are exposed and vulnerable. In doing so, the authors explore the obstacles for long-term responsibilities that human rights law provides at the level of international and national law, and scrutinise the question of whether lifestyle restrictions are enforceable in view of liberties human rights.

Some chapters that might be of interest are:

  • International Human Rights and Duties to Future Generations: The Role of an International Constitution. Stephen Riley
  • A Chain of Status: Long-term Responsibility in the Context of Human Rights. Gerhard Bos
  • Human Rights as a Normative Guideline for Climate Policy. Michael Reder and Lukas Köhler
  • On Current Food Consumption and Future Generations: Is There a Moral Need to Change our Food Consumption in Order to Safeguard the Human Rights of Future Generations? Franck L.B. Meijboom
  • The Institutional Representation of Future Generations. Sandor Fulop

On a similar subject, a recent edition of the Oslo Law Review contains a publication on Legal Pluralism, Human Rights and the Idea of Climate Justice, by Aled Dilwyn Fisher. The article can be downloaded here.

Approaching the subject from a governance perspective, a chapter published by Laura Horn entitled Human Rights and International Environmental Governance is certainly worth reading. The chapter considers the failure of the international legal system to provide adequate mechanisms for global environmental governance. It also discusses some proposals for change to environmental government from existing institutions, by focusing on a possibility for an international human rights to a healthy environment.

Change and Continuity in Global Governance

The latest issue of the Journal Ethics & International Affairs has a special section that addresses probably the most pressing questions on today’s global world. Why, despite well-established and well-publicised intergovernmental processes that date back to the early 1970s, have we been unable to put in place effective mechanisms to combat climate change? to enforce human rights? to eradicate inequalities? Most fundamentally, why have the current international system and the outcomes that it has produced remained so inadequate in the postwar period?

The purpose of the special section edited by Thomas G. Weiss and Roden Wilkinson is to push outwards the boundaries of what we understand as global governance. That is to look at not only ‘traditional subjects’ such as state, international law, and international organisations, but also other actors, networks and strategies, either formal or informal. The idea is to understand global governance actors both as guardians of practices/issues and agents of changes.

Articles included in this special section are:

 

Law, Democracy and the Socio-Economic Rights

The problem of implementation deficits may be an inherent trait for human rights in general, including socio-economic rights. In this regard, much commentary on human rights in developing countries, particularly written by international human rights NGOs, as well as from the rights-based approaches camps, has suggested that the problem lies primarily in inadequate protection for human rights in countries’ legal frameworks. Here, many view law, accepted, ratified and/or codified as a powerful force for change. The focus has been on identifying legislative and policy gaps. But what explains countries’ slow and uneven progress in implementing socio-economic rights?

An article written by Andrew Rosser and Maryke van Diermen critically engages with this topic by arguing that the most important determinants of socio-economic rights outcomes in developing countries, such as Indonesia, lie in the political and social, rather than the legal realm. Indonesian average score on the Social and Economic Rights Fulfilment (SERF) Index shows an uneven improvement across socio-economic rights. The country has made significant progress in the rights to education and health but rather less progress in the rights to food, work and housing. The authors argue that the competing elite network over resources and power, such as reflected in the electoral process, has created a persistent obstacle for realising these rights, despite an increasing political and social space claimed and acquired by social movements.

I support this argument but also think that this approach reduces the scale of implementation problems into mere non-fulfillment ones. The implementation of socio-economic rights requires protection as much as fulfillment. And therefore a question is asked: doesn’t legal institutional design matter in how states respect, protect and fulfil these rights? Because what is missing in the argument is how the dynamic between actors affects existing enforcement mechanisms, for instance the role of prosecutorial independence and prosecutorial accountability.

A prosecutorial organ is in charge of the investigation and prosecution of violation of human rights, which makes this institution a key gatekeeper to the courts, thus the protection and realisation of socio-economic rights. Empowered with prosecutorial discretion, a prosecutorial organ dictates what, when, and whom to prosecute. The institutional design of the prosecutorial organ varies across time and across countries, which raises an important question on the discretion to prosecute (i.e., the more accountable a prosecutorial organ is). On this topic, Veronica Michel argues that the less this discretion is shaped by political pressures (i.e., the more independent the prosecutorial organ is), the more likely we will observe the initiation of prosecutions against state agents. For the case of socio-economic rights, this thesis should be tested even in political contexts that appear to be against the rights-based approach to development.

Future research on socio-economic rights should incorporate the interplay between political economy aspects and the role of prosecutorial organs and prosecutorial discretion, as this is pivotal to our understanding of how and when claims are successful or deceased.

Haze Crisis and What ASEAN Can Do

Haze crisis in Southeast Asia is not something new. It happens annually, usually starts in June and stops as season changes and rain comes, which is around September or October. The cause is clear, and that is the burning of forest and petlands in Sumatera and Kalimantan, Indonesia.  Yet its impacts on both the originating country and its neighbours have worsened each year. The situation is particularly bad now as one report stated that the 2015 fires have emitted enough greenhouse gases to rival Germany’s annual output of CO2.  In Sumatera and Kalimantan at least 25.6 million people are exposed to unhealthy air. The thick and lingering smoke causes limited visibility of merely 20 meters. The haze crisis is also affecting Singapore, Malaysia, the Phillipines, and even the Eastern islands in Indonesia.  The severity of it brings six provinces in Indonesia to declare the crisis a state emergency.

As this annual and actually preventable disaster severe implications to the aspect of health and livelihoods of the populations of many ASEAN member states, should ASEAN do something to address this issue? But what can ASEAN do?

The answer to the first question is of course, yes, ASEAN should do something.  The haze crisis is an incident that requires a concerted effort. Smokes know no boundaries, thus there is little a single authority could do to alleviate the haze problem except to advise residents to stay indoors, to wear masks and to hope that the wind could change direction soon or for the rain to start . Desperate measures as such are obviously insufficient, especially because at the ASEAN level there is a specific agreement that addresses this very transnational problem.

In 2002, the ASEAN Agreement on Transboundary Haze Pollution was declared. The Agreement is made to be legally binding, a rare quality for ASEAN that is well-known for its non-interference policy. It is ratified by 10 member states and Indonesia is the last one to have ratified this agreement. It requires the Parties: (i) cooperate in developing and implementing measures to prevent, monitor, and mitigate transboundary haze pollution by controlling sources of land and/or forest fires, development of monitoring, assessment and early warning systems, exchange of information and technology, and the provision of mutual assistance; (ii) respond promptly to a request for relevant information sought by a State or States that are or may be affected by such transboundary haze pollution, with a view to minimising the consequence of the transboundary haze pollution; and (iii) take legal, administrative and/ or other measures to implement their obligations under the Agreement. Read More …

Development Induced Displacement

The right to development as a human right implies a universal protection against development hazards. In the light of Thomas Pogge’s thesis on global justice, that implies a corresponding state obligation not to cause harm. The principle of fair distribution of benefits stipulated in the Declaration of the Right to Development is the normative basis for this interpretation.  Distinctive in the obligation not to cause harm is that it incorporates the idea of equity and in that regard it extends beyond state obligations asserted in the Covenant on Economic, Social and Cultural Rights.  Human rights violations in the light of the right to development occur when development projects cause significant harm for one group, or others benefit more.  Development induced displacement is a term normally used to describe such situations.

For instances when the construction of dams, transport infrastructures, or other mega projects lead to forced evictions and allocations of people and communities. This topic is being discussed in the most recent edition of ‘Development in Practice‘.