28. ENVIRONMENTAL PROTECTION AND HUMAN RIGHTS

DANY Channraksmeychhoukroth, RADU Mares

Introduction

The right to a clean and healthy environment is not explicitly mentioned in most human rights treaties; the right is however to be found in national constitutions of over 100 states. The interdependencies between human rights and the environment have been discussed in the UN for 30 years. It is only in the last decade that the UN has truly clarified the interdependencies between securing human rights and environmental protection. Clearly, human rights cannot be enjoyed in a degraded environment and under the catastrophic threat from climate change that can trigger large population displacements (chapter 21) and the collapse of agriculture and food chains. In turn, the international human rights system provides norms and institutions that are absent in the environmental law area, allowing the UN mechanisms to reinforce environmental policy-making and the adoption of proper mitigation and adaptation measures to climate change. Whether protecting the environment or human rights, rights defenders are being threatened or murdered as they stand up to private and public abuses of power. Businesses are increasingly being asked to protect such human rights defenders even when they criticize businesses for their negative social and environmental impacts. For the corporate world, environmental responsibility has been on the CSR agenda way before the arrival of human rights on the agenda in the 1990s (chapter 8). The human rights due diligence approach popularized by the UNGPs (chapters 2 and 10) is now being seen as an increasingly relevant and authoritative way to address all kinds of negative business impacts, whether societal or environmental impacts. Some vulnerable groups protected by international law – e.g. indigenous people (chapter 22)) and land-reliant rural populations (chapter 25) – are particularly at risk due to environmental degradation, all the while they lack sufficient legal safeguards and access to justice (chapters 6-7) in many developing countries (chapter 1). National laws in developed countries increasingly require transparency on environmental impacts abroad (chapter 4) while international trade and investment agreements increasingly contain social and environmental chapters (chapter 3).

Approximately three quarters of the Cambodian population depend on natural resources to support their livelihoods. In particular, Cambodian citizens rely heavily on agriculture, forest products, and fisheries to subsist. This makes environmental protection particularly important for their livelihood; thus, any threat to environment is a threat to Cambodians’ survival and their enjoyment of human rights. There are increasing numbers of large-scale logging of forest, resource extraction, infrastructure projects, and land concessions throughout Cambodia. These activities are normally run by companies and create positive impact to the economic development of the country. At the same time, such activities undermine the rights to adequate housing, food, water, health and produce long-term environmental impacts. Cambodia has endorsed the ASEAN Human Rights Declaration, which in Article 28(f) recognizes the human rights to a safe, clean and sustainable environment, which normally refers to as the right to a healthy environment.

Main Aspects

• Human right to a healthy environment
• Types of environmental degradation (pollution, biodiversity loss, climate change)
• Interdependency of human rights and environmental protection
• Relation between human rights and the environment (human rights support environmental protection and vice versa)
• Right to life
• Right to respect for private and family Life
• Vulnerable groups (people at risk)
• Human rights based approach “HRBA” (to development, to environmental protection)
• Environmental principles (precautionary principle, the polluter pays principle, inter-generational equity principle, the common but differentiated responsibility principle)
• Transboundary pollution and extraterritorial obligations
• Environmental impact assessments
• Right to information
• Public participation
• Access to justice and grievance mechanisms
• Environmental justice and equity (inter-generational)
• State sovereignty (setting the level of environmental protection; balancing environmental, developmental and social considerations)
• Global food system and the agriculture sector

Background

UN Independent Expert, Preliminary Report^[1]

           

34. [First], environmental degradation can and does adversely affect the enjoyment of a broad range of human rights, including rights to life, health, food and water. Second, the exercise of certain rights can and does benefit environmental policymaking, resulting in better environmental protection and, as a consequence, greater protection of the human rights that may be threatened by environmental degradation. These protective rights include rights of free expression and association, rights of information and participation, and rights to remedy. They have been affirmed in a wide range of international instruments, including environmental as well as human rights agreements.

44. As the Council has recognized in its resolution 16/11, “environmental damage is felt most acutely by those segments of the population already in vulnerable situations”. Resolution 19/10 instructs the Independent Expert to apply a gender perspective by, inter alia, considering the particular situation of women and girls and identifying gender-specific discrimination and vulnerabilities, and it is clear that women and children are among the groups vulnerable to environmental harm. The special procedures and OHCHR have identified other groups as well. For example, the then Independent Expert on the question of human rights and extreme poverty pointed out in a report to the General Assembly (A/65/259) that “environmental degradation disproportionately affects those living in extreme poverty” (…)

45. Indigenous peoples are at particular risk from many kinds of environmental damage because of their cultural and economic dependence on environmental resources. (…)

UN Special Rapporteur, Climate Change Report^[2]

Human rights obligations relating to climate change

33. (…) Human rights obligations apply not only to decisions about how much climate protection to pursue, but also to the mitigation and adaptation measures through which the protection is achieved.

34. In some respects, the application of these obligations is relatively straightforward. However, the scale of climate change introduces complicating factors. Unlike most environmental harms to human rights that have been considered by human rights bodies, climate change is truly a global challenge. Greenhouse gases emitted anywhere contribute to global warming everywhere. Billions of people contribute to climate change and will experience its effects, and the causal chains linking individual contributions with specific effects may be impossible to discern with certainty.

41. A possible response is to treat climate change as a matter of extraterritoriality — that is, to conclude that it implicates the obligation of each State to protect the human rights of those outside, as well as those within, its own jurisdiction. The Special Rapporteur is aware that the question of extraterritorial human rights obligations has been controversial in other contexts. However, he believes that attempting to describe the extraterritorial human rights obligations of every State in relation to climate change would be of limited usefulness even apart from its potential for controversy. In the human rights context, climate change is probably not best understood as a set of simultaneously occurring transboundary harms that should be addressed by each State trying to take into account its individual contribution to the effects of climate change in every other State in the world. The practical obstacles to such an undertaking are daunting, and it is instructive that the international community has not attempted to address climate change in this way.

42. Instead, (…) States have consistently treated climate change as a global problem that requires a global response. This approach not only makes the most practical sense. It is also in accord with, and can be seen as an application of, the duty of international cooperation.

43. The duty of international cooperation has support in the general practice of States and, more specifically, in the Charter of the United Nations. (…)

UN Special Rapporteur, Biodiversity^[3]

Human rights and biodiversity

8. (…) Economic and social development depends on the use of ecosystems, including, in appropriate cases, the conversion of natural ecosystems such as old-growth forests into human-managed ecosystems such as pastures and cropland. To support the continued enjoyment of human rights, however, this development cannot overexploit natural ecosystems and destroy the services on which we depend. Development must be sustainable, and sustainable development requires healthy ecosystems

9. Although the importance of a healthy environment for the enjoyment of human rights is widely recognized, the relationship between human rights and biodiversity remains less well understood. The Convention on Biological Diversity (art. 2) defines biodiversity as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems”. Biodiversity thus includes not only the millions of different species on Earth; “it also consists of the specific genetic variations and traits within species (such as different crop varieties), and the assemblage of these species within ecosystems that characterize agricultural and other landscapes such as forests, wetlands, grasslands, deserts, lakes and rivers”.

10. In the words of the Millennium Ecosystem Assessment, “biodiversity is the foundation of ecosystem services to which human well-being is intimately linked”. Biodiversity supports ecosystem services and the human rights that depend upon them in many ways. In general, biodiversity contributes to the productivity and stability of ecosystem processes. More diverse ecosystems are more resilient to disasters and to longterm threats such as climate change. More specifically, biodiversity contributes to particular ecosystem services that directly support the full enjoyment of human rights. The present report highlights some of those contributions with respect to: the rights to life and health; the right to an adequate standard of living; and the right to non-discrimination in the enjoyment of rights.

Instruments

UN Special Rapporteur, Framework Principles on Human Rights and Environment^[4]

Introduction

8. (…) The framework principles and commentary do not create new obligations. Rather, they reflect the application of existing human rights obligations in the environmental context. [The Special Rapporteur] understands that not all States have formally accepted all of these norms. While many of the obligations described in the framework principles and commentary are based directly on treaties or binding decisions from human rights tribunals, others draw on statements of human rights bodies that have the authority to interpret human rights law but not necessarily to issue binding decisions.

9. The coherence of these interpretations, however, is strong evidence of the converging trends towards greater uniformity and certainty in the understanding of human rights obligations relating to the environment. These trends are further supported by State practice, including in international environmental instruments and before human rights bodies. As a result, the Special Rapporteur believes that States should accept the framework principles as a reflection of actual or emerging international human rights law. He is confident that, at a bare minimum, States will see them as best practices that they should move to adopt as expeditiously as possible.

The human right to a safe, clean, healthy and sustainable environment

11. An unusual aspect of the development of human rights norms relating to the environment is that they have not relied primarily on the explicit recognition of a human right to a safe, clean, healthy and sustainable environment — or, more simply, a human right to a healthy environment. Although this right has been recognized, in various forms, in regional agreements and in most national constitutions, it has not been adopted in a human rights agreement of global application, and only one regional agreement, the African Charter on Human and Peoples’ Rights, provides for its interpretation in decisions by a review body.

12. Treaty bodies, regional tribunals, special rapporteurs and other international human rights bodies have instead applied human rights law to environmental issues by “greening” existing human rights, including the rights to life and health. As the mapping report explained and the framework principles demonstrate, this process has been quite successful, creating an extensive jurisprudence on human rights and the environment. In retrospect, this development is not as surprising as it may have seemed when it first began, over two decades ago. Environmental harm interferes with the full enjoyment of a wide spectrum of human rights, and the obligations of States to respect human rights, to protect human rights from interference and to fulfil human rights apply in the environmental context no less than in any other.

13. Explicit recognition of the human right to a healthy environment thus turned out to be unnecessary for the application of human rights norms to environmental issues. At the same time, it is significant that the great majority of the countries in the world have recognized the right at the national or regional level, or both. Based on the experience of the countries that have adopted constitutional rights to a healthy environment, recognition of the right has proved to have real advantages. It has raised the profile and importance of environmental protection and provided a basis for the enactment of stronger environmental laws. When applied by the judiciary, it has helped to provide a safety net to protect against gaps in statutory laws and created opportunities for better access to justice. Courts in many countries are increasingly applying the right (…).

14. On the basis of this experience, the Special Rapporteur recommends that the Human Rights Council consider supporting the recognition of the right in a global instrument. A model could be the rights to water and sanitation, which, like the right to a healthy environment, are not explicitly recognized in United Nations human rights treaties but are clearly necessary to the full enjoyment of human rights. In 2010, in its resolution 64/292, the General Assembly recognized “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights”. The General Assembly could adopt a similar resolution that recognizes the right to a safe, clean, healthy and sustainable environment, another right that is essential for the full enjoyment of life and all human rights.

15. States may be understandably reluctant to recognize a “new” human right if its content is uncertain. (…) the “human right to a healthy environment” is not an empty vessel waiting to be filled; on the contrary, its content has already been clarified, through recognition by human rights authorities that a safe, clean, healthy and sustainable environment is necessary for the full enjoyment of the human rights to life, health, food, water, housing and so forth. Here, too, the right is similar to the rights to water and sanitation, whose content had been addressed in detail by the Committee on Economic, Social and Cultural Rights and Catarina de Albuquerque, the first Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation, before the General Assembly acted in 2010.

16. [Recognizing the “the human right to a healthy environment”] has real advantages. It raises awareness that human rights norms require protection of the environment and highlights that environmental protection is on the same level of importance as other human interests that are fundamental to human dignity, equality and freedom. It also helps to ensure that human rights norms relating to the environment continue to develop in a coherent and integrated manner. (…)

18. For example, more work is necessary to clarify how human rights norms relating to the environment apply to specific areas, including issues of gender and other types of discrimination, the responsibilities of businesses in relation to human rights and the environment, the effects of armed conflict on human rights and the environment, and obligations of international cooperation in relation to multinational corporations and transboundary harm.

Framework Principles on Human Rights and the Environment

Principle 1 – States should ensure a safe, clean, healthy and sustainable environment in order to respect, protect and fulfil human rights.

Principle 2 – States should respect, protect and fulfil human rights in order to ensure a safe, clean, healthy and sustainable environment.

Principle 3 – States should prohibit discrimination and ensure equal and effective protection against discrimination in relation to the enjoyment of a safe, clean, healthy and sustainable environment.

Principle 4 – States should provide a safe and enabling environment in which individuals, groups and organs of society that work on human rights or environmental issues can operate free from threats, harassment, intimidation and violence.

Principle 5 – States should respect and protect the rights to freedom of expression, association and peaceful assembly in relation to environmental matters.

Principle 6 – States should provide for education and public awareness on environmental matters.

Principle 7 – States should provide public access to environmental information by collecting and disseminating information and by providing affordable, effective and timely access to information to any person upon request.

Principle 8 – To avoid undertaking or authorizing actions with environmental impacts that interfere with the full enjoyment of human rights, States should require the prior assessment of the possible environmental impacts of proposed projects and policies, including their potential effects on the enjoyment of human rights.

Principle 9 – States should provide for and facilitate public participation in decision-making related to the environment, and take the views of the public into account in the decision-making process.

Principle 10 – States should provide for access to effective remedies for violations of human rights and domestic laws relating to the environment.

Principle 11 – States should establish and maintain substantive environmental standards that are non-discriminatory, non-retrogressive and otherwise respect, protect and fulfil human rights.

Principle 12 – States should ensure the effective enforcement of their environmental standards against public and private actors.

Principle 13 – States should cooperate with each other to establish, maintain and enforce effective international legal frameworks in order to prevent, reduce and remedy transboundary and global environmental harm that interferes with the full enjoyment of human rights.

Principle 14 – States should take additional measures to protect the rights of those who are most vulnerable to, or at particular risk from, environmental harm, taking into account their needs, risks and capacities.

Principle 15 – States should ensure that they comply with their obligations to indigenous peoples and members of traditional communities (…)

Principle 16 – States should respect, protect and fulfil human rights in the actions they take to address environmental challenges and pursue sustainable development.

UN Special Rapporteur, Compilation of Good Practices^[5]

Obligations relating to transboundary environmental harm

85. (…) a particularly important good practice is the legal recognition by a State of the rights of individuals who reside outside its territory but who may suffer environmental harm from actions arising within its territory. One example is transboundary environmental impact assessment (EIA) that allows for the participation of the affected public on both sides of the border. The chief international agreement is the Espoo Convention on Environmental Impact Assessment in a Transboundary Context, which sets out detailed requirements for transboundary EIA. As of January 2015, it has 45 parties, including most States in Europe. The Convention provides that the party where a covered activity is located must give the public of the affected State an opportunity to participate in the EIA process that is equivalent to the opportunity provided to the public of the State of origin.

90. Two other States provide good practices in ensuring that efforts to abate or adapt to climate change respect the rights of indigenous and tribal peoples. The Reducing Emissions from Deforestation and Forest Degradation (REDD+) programme, which was initiated by the sixteenth Conference of the Parties to the UN Framework Convention on Climate Change, creates incentives for developing countries to reduce emissions from deforestation and forest degradation, including through forest conservation and sustainable management. To avoid conflicts and to protect the rights of indigenous peoples in forests that might be subject to REDD+ projects, Suriname created the REDD+ Assistants Programme, in which representatives selected by their own communities are trained by the Government to understand REDD+ and to help involve indigenous and tribal peoples in the REDD+ decision-making process.

Paris Agreement^[6]

Acknowledging that climate change is a common concern of humankind, Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity, (…)

7.5. Parties acknowledge that adaptation action should follow a country-driven, gender-responsive, participatory and fully transparent approach, taking into consideration vulnerable groups, communities and ecosystems, and should be based on and guided by the best available science and, as appropriate, traditional knowledge, knowledge of indigenous peoples and local knowledge systems, with a view to integrating adaptation into relevant socioeconomic and environmental policies and actions, where appropriate.

United Nations, Aarhus Convention^[7]

Article 2

3. “Environmental information” means any information in written, visual, aural, electronic or any other material form on:

(a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making;

(c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above;

Article 6 – Public participation in decisions on specific activities

2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:

a) The proposed activity and the application on which a decision will be taken;

b) The nature of possible decisions or the draft decision;

c) The public authority responsible for making the decision;

d) The envisaged procedure, including, as and when this information can be provided:

• The commencement of the procedure;
• The opportunities for the public to participate;
• The time and venue of any envisaged public hearing;
• An indication of the public authority from which relevant information can be obtained and where the relevant information has been deposited for examination by the public;
• An indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; and
• An indication of what environmental information relevant to the proposed activity is available; and

(e) The fact that the activity is subject to a national or transboundary environmental impact assessment procedure.

7. Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or inquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.

8. Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.

Article 9 – Access to justice

1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.

Global Studies Institute, Report on European Convention on Human Rights^[8]

Right to a Healthy Environment

12. Although the European Court of Human Rights has recognized the importance of environmental matters, it has not recognized a freestanding right to a healthy environment. The Court states in Kyrtatos v. Greece that “[n]either Article 8 (protection of private and family life) nor any other Articles of the Convention are specifically designed to provide general protection of the environment as such; to that effect, other international instruments and domestic legislation are more pertinent in dealing with this particular aspect”.

13. However, the Court has accepted an indirect recognition of environmental issues when protecting fundamental rights. Accordingly, the Court has found that a range of environmental factors can affect and threaten individuals and their rights under the Convention. Specifically, ECrtHR case law has addressed environmental issues as components of Articles 2 (“right to life”) and 8 (“right to respect of private and family life”) of the Convention, as well as Article 10 and Article 1 of Protocol no. 1 of the Convention and procedural rights like the right to an effective remedy (Articles 6.1 and 13).

“Right to Life”: Article 2

15. The ECrtHR considers Article 2 as determinant for the realisation of others’ rights in the Convention. The Court is restrictive, however, in considering Article 2 for environmental issues. There are only a few cases where the Court has found a violation of Article 2 in this context, namely where applicants have been exposed to dangerous activities or natural disasters.

16. L.C.B. v. United Kingdom is the starting point for the recognition of a link between environment and the right to life. However, in this case the Court concluded there was no breach of Article 2 as no causal link was established between the exposure of a father to radiation (while serving the army during nuclear tests) and leukemia suffered by a child subsequently conceived. (…)

17. In Öneryildiz v. Turkey, “[t]he Chamber emphasized that the protection of the right to life, as required by Article 2 of the Convention, could be relied on in connection with the operation of wastecollection sites, on account of the potential risks inherent in that activity”.

18. This position of the Court was confirmed in Budayeva and others v. Russia, in which a breach of Article 2 was recognized in a mudslide that according to official reports killed 8 people, with an additional 19 people missing according to the applicants.  The case arose in the town of Tyrnauz, which is under permanent threat from mudslides because of its geographical position. In summer 2000, a succession of mudslides hit the town that resulted in many deaths and extensive property damage. It appeared that the public authorities did not take appropriate measures to mitigate the risks of mudslides, notably in restoring the dam (seriously damaged by a mudslide a year previously). (…).

19. In Kolyadenko and others v. Russia, a heavy rainfall reaching 189 millimetres fell within two hours, which resulted in the release of water from the reservoir. The water release flooded a large area around the reservoir, seriously damaging the applicants’ homes and furniture. There, the Court considered that the causal link established between the negligence attributable to the State and the endangering of the lives of those living in the vicinity of a water reservoir, also applied to the damages caused by a flooding to the applicants’ homes.

“Right to Respect for Private and Family Life”: Article 8

20. Article 8 is the principal instrument used by the ECrtHR for the protection of the environment and the Court has developed an important environmental jurisprudence based on that Article. According to the Moreno Gomez v. Spain case, “there is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8”.

21. In the McGinley and Egan v. United Kingdom case, M. McGinley was a plant operator at Christmas Island for the UK army when atmospheric tests of nuclear weapons were carried out in the Pacific Ocean. During the tests, service personnel were ordered to line up in the open and to face away from the explosions. M. Egan was serving as a stoker on a ship positioned off Christmas Island during the detonations. After the exposure, the applicants complained about a succession of health problems, which they came to attribute to radiation exposure. “In the absence of any individual monitoring, they were left in doubt as to whether or not they had been exposed to radiation at levels engendering risk to their health. The Court considers that […] the issue of access to information which could either have allayed the applicants’ fears in this respect, or enable them to assess the danger to which they had been exposed, was sufficiently closely linked to their private and family lives within the meaning of Article 8 as to raise an issue under that provision”.(…)

22. In Lopez Ostra v. Spain, the Court admitted a breach of Article 8 in a situation of pollution from a waste treatment plant situated a few meters from the applicant’s home. Based on medical reports and experts’ opinions, it appeared that hydrogen sulphide emissions from the plant exceeded the permitted limits, and could endanger the health of person living nearby. The court considered that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”.

23. In the noteworthy Bacila v. Romania case, the Court recognized a breach of Article 8 as the applicant showed a causal link between the plant pollution (by emitting noxious emissions) and her health deterioration (lead poisoning).

26. Tatar v. Romania concerned a father and his son living in the area surrounding the site of a gold mine. The applicant argued that the extraction process, storing and using sodium cyanide, constituted a genuine risk to human health. Furthermore, he alleged that the bronchial asthma contracted by his son was a result of the pollution generated by the company extracting the gold. The Court found that the State had failed in its obligation to guarantee the rights under Article 8 of the Convention since the applicant failed to obtain any official document from the authorities confirming that the gold extraction plant’s activities were dangerous. Nonetheless, on the basis of environmental impact studies of the spilling submitted by the respondent State, the Court concluded that a serious and substantial threat to the applicant’s well-being existed.

Situations Covered by Articles 2 and 8

27. The Court clarified the scope of article 2 by stating that “[a]rticle 2 of the Convention does not solely concern deaths resulting from the use of force by agents of the State but also, in the first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction”. The threat to life thus can emanate also from natural phenomena or human activities. The Court explained further that “this Article, read as a whole, covers not only situations where certain action or omission on the part of the State led to a death complained of, but also situations where, although an applicant survived, there clearly existed a risk to his or her life”.

28. In comparison, the Court has interpreted the scope of article 8 less restrictively than article 2. The Court has accepted a variety of sources of infringements. As such, article 8 can cover all types of pollutions in a wide extent: e.g., noise, air pollution, use of cyanide for gold mine, nuclear impact, accumulation of waste on the public road, or use of pyrotechnics.

29. The jurisprudence of the Court emphasizes the respect for the “quality of life” and importance of the concept of “home” relating to consideration of a violation of article 8. Since the Moreno Gomez v. Spain case, “home” is the key notion for the development of the jurisprudence to protect environment: “According to the Court, the right to respect for the home does not only include the right to the actual physical area, but also to the quiet enjoyment of this area within reasonable limits”. A “home”, according to the Court’s rather broad notion, is “the place, i.e. physically defined area, where private and family life develops”. Furthermore, “[a]rticle 8 protection was restricted to the home and could not apply when the subject matter of the complaint was a nuisance outside the home”. “Home” can refer to the notion of “private sphere”. Even when a person is imprisoned, his or her cell, which is not “home”, must be protected as his or her “living space”.

30. In the assessment of a violation of article 8, the Court requires that the applicant is “directly and seriously affected”: “Severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health”. The Court assesses a second criterion: the minimum threshold of harm attained. The Court does not require evidence of an actual impact on the health of the applicant to find Article 8 applicable. However, to reach the threshold of seriousness the consequences must be intense, repeated.

31. For the Convention to be applicable, it is necessary to establish a link between the environmental infringement and the respect for private and family life: the causal link. A general degradation of the environment is not sufficient. The probability of risks must be demonstrated otherwise the status of victim is lacking.

Article 1 of Protocol no. 1 of the Convention

55. The Court protects the right to property under Article 1 of Protocol no. 1 as the right to protection of one’s possessions that needs to be “practical and effective”. Member States are also under positive obligations to take measures as to ensure the effective protection of this right. In the environmental context, this obligation has raised issues mainly in respect of dangerous activities and to a lesser extent natural disasters. Similar to the other rights, the applicant has to prove the causal link between the State’s actions and the effective enjoyment of his possessions. The right is not absolute and thus State’s authorities enjoy also a margin of appreciation and are entitled to restrict the use of property if matters of general interest require it.

57. Any deprivation of one’s property should respect the proportionality test: any decision of public authorities must be justified as being based on the “law”, carried out in the “public interest” and a fair balance must be struck between the individual’s interest and the public interest. Moreover, the Court established strict criteria in assessing the fulfillment of State’s obligations: when public authorities plan dangerous activities, which involve risks to health, it should be established an effective and accessible procedure to enable individuals to get proper information.

58. The ECrtHR can assess whether adequate compensation is paid to individuals concerned. In cases relating to environmental conservation, the Court has held that the community’s general interest is prominent and confers on the State a margin of appreciation that is greater than when exclusively civil rights are at stake.

GNHRE, Declaration on Human Rights and Climate Change^[9]

Preamble

Reaffirming the universality, indivisibility, interdependence and interrelationality of all human rights, the interrelationality of all life on Earth and the dependency of all life on Earth on a healthy biosphere and Earth system integrity,

Recognizing that climate change, caused by the human industrial and consumer activities, disproportionally affects indigenous peoples, the poor, women and children, the vulnerable, small island and low elevation coastal communities, developing countries, least developed countries, future generations and innumerable living beings and systems,

Recognizing that the ultimate realization of human rights in the age of climate crisis requires the full legal protection of the living beings and systems upon which human life depends,

Recognizing that human beings are part of the living Earth system,

Recognizing the climate destructive and ecocidal results of assuming human separation from nature,

Recognizing the need for all cultures, faiths and traditions to play a role in the fullest development of climate and environmental stewardship, the teaching of respect for all living beings and systems and the development of climate resilient communities,

Recognizing that science confirms the threats of climate change to the Earth’s systems and its multiple life forms,

Recognizing that science confirms the threat of climate change to the livelihoods and well-being of present and future generations,

Recognizing that climate impacts disproportionally affect innumerable living beings and systems that are intrinsically valuable in their own right and unable to defend themselves,

Recognizing that climate change displaces populations and that international, cross-border and internal migration has increased due to climate change and is likely to continue to do so, (…)

Deeply concerned by the severe human rights consequences of the continuing political failure to reach adequate commitments on climate mitigation and adaptation; by the dominance of the market as the primary value coordinating international responses to the climate crisis; and by the ongoing lack of accountability for corporate actors that violate human, environmental and climate rights,

Convinced that the potential irreversibility of climate change effects gives rise to an urgent need for new forms of state and non-state responsibility, accountability and liability.

The following principles are declared:

Section I:

1. Human rights and a profound commitment to climate justice are interdependent and indivisible.
2. All human beings, animals and living systems have the right to a secure, healthy and ecologically sound Earth system.
3. All human beings have the right to fairness, equity and justice in all climate resilience, adaptation and mitigation measures and efforts.
4. All human beings have the right to a planetary climate suitable to meet equitably the ecologically responsible needs of present generations without impairing the rights of future generations to meet equitably their ecologically responsible needs.
5. All human beings, animals and living systems have the right to the highest attainable standard of health, free from environmental pollution, degradation and harmful emissions and to be free from dangerous anthropogenic interference with the climate system such that rising global temperatures are kept well below 2 degrees centigrade above preindustrial levels.
6. All human beings have the right to investments in adaptation and mitigation to prevent the deleterious consequences of anthropogenic climate change, and to international solidarity and timely assistance in the event of climate change driven catastrophes.
7. All human beings, animals and living systems have the right to fairness, equity and justice in respect of responses to the threat of climate change. This includes protection from deleterious impacts caused by adaptation and mitigation efforts to develop climate resilience, and by the potential deployment of climate geoengineering technologies.
8. All human beings have the right to a just transition towards a sustainable society characterized by meaningful inclusion and distributive justice.

Section II:

• All human beings have the right to information about, and to participation in, decision-making processes related to alterations made to the physical environments they rely upon for their health and survival.
• All human beings have the right to information concerning the climate. The information shall be timely, clear, understandable and available without undue financial burden to the applicant.
• All human beings have the right to hold and express opinions and to disseminate ideas and information regarding the climate.
• All human beings have the right to climate and human rights education. This education includes the right to learn from multiple perspectives and to understand non-human natural modes of behavior and the requirements of flourishing planetary ecosystems.
• All human beings have the right to active, free, and meaningful participation in planning and decision-making activities and processes that may have an impact on the climate. This particularly includes the rights of indigenous peoples, women and other under-represented groups to equality of meaningful participation. This includes the right to a prior assessment of the climate and human rights consequences of proposed actions. This includes the right to equality of hearing and the right for processes to be free of domination by powerful economic actors. This includes the rights of indigenous peoples to participate in the protection of their rights to their lands, territories, natural resources, tenure rights and cultural heritage.
• All human beings have the right to associate freely and peacefully with others, and to gather peacefully in public spaces, for purposes of protecting the climate or the rights of those affected by climate harm.
• All human beings have the right to effective remedies and redress in administrative or judicial proceedings for climate harm or the threat or risk of such harm, including modes of compensation, monetary or otherwise.

Section III:

1. All persons, individually and in association with others, have a moral responsibility to avoid and/or to minimize practices known to contribute to climate damage.
2. All States and business enterprises have a duty to protect the climate and to respect the rights set out in this Declaration.
3. All Parties shall, in all climate change related actions, respect, protect, promote, and fulfil the rights of indigenous peoples. Such rights include support to facilitate mitigation measures; rights to collective self-determination and to free, prior and informed consent; to full and equal participation in environmental and political processes; and to respect and protection for indigenous traditional knowledge. This shall include respect and protection for indigenous customary laws, and proper recognition of the role of indigenous peoples in ensuring the integrity and resilience of natural ecosystems.
4. All Parties shall, in all climate change related actions, ensure gender equality and the full and equal participation of women; intergenerational equity; a just transition of the workforce that creates decent work; food sovereignty; and the integrity and resilience of natural ecosystems.
5. All States have a duty to provide assistance and solidarity to climate refugees. States shall respect the rights to assistance and solidarity and create the necessary legal frameworks to assist and support climate refugees in order to ensure their life and dignity.
6. All States shall respect and ensure the right to a secure, healthy and ecologically sound environment and to a stable climate, and ensure the rights outlined in Parts I—III of this Declaration. Accordingly, they shall adopt the administrative, legislative and other measures necessary to effectively implement the rights in this Declaration.
7. All States shall ensure international cooperation with other States and international organizations and agencies for the purpose of respecting the rights outlined in Parts I-III of this Declaration. All States shall observe the rights and duties in this Declaration, including extraterritorially.
8. All international organizations and agencies shall observe the rights and duties in this Declaration, including the human and procedural rights of indigenous peoples, women and other traditionally under-represented and marginalized groups and individuals.
9. All States, international organizations, business enterprises and individuals acting to reduce climate harms shall respect and recognize the rights of any affected human beings and other living beings and systems to be free from climate change-related harm.

UNEP, Climate Change and Human Rights^[10]

Part I describes the latest projections and observations of how climate change impacts and responses can affect the environment, individuals and communities. Some of the key findings include:

• The impacts of climate change on freshwater resources, ecosystems, and human settlements are already undermining access to clean water, food, shelter, and other basic human needs; interfering with livelihoods; and displacing people from their homes. Even if we remain within the international goal of 2° C of global warming, these impacts will expand dramatically in the coming decades.
• These impacts constitute a serious interference with the exercise of fundamental human rights, such as the rights to life, health, water, food, housing, and an adequate standard of living.
• Mitigation, adaptation, and geoengineering measures can also adversely affect the exercise of human rights. For example, there are documented instances of hydroelectric and biofuel projects that have resulted in human rights violations. There is also a high risk of human rights violations resulting from the implementation of resettlement programs for those who are displaced or at risk of displacement due to climate change, and a corresponding need to ensure that such programs are undertaken with adequate input and consent from those who are relocated.

Part II summarizes the obligations of governments and private actors to respond to these impacts. This section begins by reviewing how UN agencies and national governments have come to understand the relationship between climate change and human rights. It then provides a more detailed discussion of specific obligations in this context. These include:

• Procedural obligations for all governments to ensure that the affected public is: (i) adequately informed about the impacts of climate change and the measures undertaken to both mitigate and adapt to climate change; (ii) adequately involved in public decisions about climate change; and (iii) given access to administrative, judicial, and other remedies when rights are violated as a result of climate change and responses to it.
• Substantive obligations for all governments to: (i) protect human rights from climate-related harms; (ii) respond to the core drivers of climate change by regulating GHG emissions within their jurisdiction; (iii) cooperate internationally to protect human rights against climate-related harms; (iv) address the transboundary impacts of climate change; and (v) safeguard human rights in all mitigation and adaptation activities.
• States also have unique obligations with respect to certain groups, including women, children, and indigenous peoples. Notably, states must obtain free, prior and informed consent (FPIC) before undertaking any measures that would adversely affect the traditional lands and resources of indigenous peoples.
• Private actors also have obligations to address the human rights implications of climate change, and should refer to the UN Guiding Principles on Business and Human Rights to ensure that they fully respect human rights in all activities.

Part III discusses the implementation of these obligations, focusing primarily on activities undertaken by national governments either within or outside of the UNFCCC context. It documents several recent developments in this area:

• Some states are beginning to recognize the linkages between human rights and climate change in reports submitted to the UNFCCC secretariat, but this is not the case for the majority of developed nations.
• There is a significant “emissions gap” between the mitigation commitments set forth in the Intended Nationally Determined Contributions (INDCs) and the emission reductions required to keep warming at or below 2°C.
• There is also a significant “adaptation finance gap” in terms of what will be needed to adapt to climate change and the finance, technology and capacity available.
• Finally, there is a significant “finance gap” between the financial and technical assistance that has been given or pledged to developing countries and the resources that will be required to ensure that climate change does not interfere with the exercise of human rights in those countries. This is true even if we do meet the 2°C target.
• Most international climate finance mechanisms are accompanied by safeguards to protect human rights, but there is room for improvement, especially with respect to the monitoring and assessment of these programs and any human rights violations.

Atapattu, Environmental Law Principles in Asia^[11]

Sustainable development has become the overarching framework while other principles, especially, the precautionary principle, the polluter pays principle and the public trust doctrine have been identified as tools to achieve sustainable development or as its components. Other significant principles include the inter-generational equity principle and procedural rights of access to information and participation of relevant stakeholders. One important principle missing from this discussion is the common but differentiated responsibility principle which underlies the climate regime and the ozone regime.  While the articulation of these principles by the judiciaries in the region is laudable, their implementation leaves a lot to be desired. Many of the principles discussed here have been incorporated in environmental legislation in many countries in the region but these are hardly enforced.

Global Initiative, Guide on Human Rights Approach to Environment^[12]

Numerous participatory development practices are already underway to tackle the ecological crisis. Not all of these yet use human rights explicitly. More specific reference to human rights standards and principles will help ‘scale-up’ and ‘scale-out’ these nascent initiatives. Human rights are internationally-recognized standards for human treatment that can provide compelling arguments for political mobilization for climate action. They also represent guarantees that this political mobilization will focus on the most marginalized in societies, avoiding treating local communities as homogenous. There are numerous tools for integrating or transforming development to meet the ecological crisis and climate change; but, without clear reference to human rights, they may find that, in the difficult realities faced by practitioners, they continue the trade-offs and compromises that overlook underlying social and ecological injustices in development practice. Human rights are the best insurance against this.

While there are many tools for helping different aspects of ecological and climate analysis, there is no need to reinvent the key aspects of a HRBA outlined by the likes of Jonsson for UNICEF (Jonsson, 2005) – rather, they should be updated to recognize the ecological embeddedness of human rights and the threat of climate change. An updated version of Jonsson’s process can be used by practitioners in planning:

1. Causality analysis – identify immediate, underlying and basic causes of development problems that are understood to reflect human rights violations:

• Use participatory ecological and climate-related tools (…) alongside analysis of marginalization, discrimination and rights violations. Temporally, this must include projecting forward for future ecological/climate-related changes that must be factored into long-term planning. Spatially, such analysis should happen at the lowest appropriate ecological level and take into account the interactions between ecosystems, locally and globally.

2. Pattern analysis – identify key claim-duty relationships in a particular societal context:

• Key to this will be looking at current local duties related to control of resources, particularly where traditional/customary arrangements exist;

3. Capacity gap analysis – analyzes why rights are not being realized by looking at responsibility/motivation/commitment/leadership, authority, access/control over resources, communication capability, and capacity for rational decision-making and learning

• Resource access/control is key and must identify areas for advocacy and mobilization to realize resource rights. The learning aspect is also particularly important for ongoing evaluation of complex ecological changes;

4. Identifying candidate actions

• Requires a participatory process and constant referral back to the ecological and human rights causality analysis. Human rights principles are particularly vital here as prioritization tools. Activities should themselves be screened for climate/ecological resilience using EIAs and human rights impact assessments (…);

5. Program design – aggregating up from activities to projects and broader programmes.

Throughout these steps, practitioners should make specific reference to:

• Substantive rights – especially rights to life, liberty and security of person; subsistence; and land;
• Procedural rights – focussing on access/provision of information, participation at all levels and redress mechanisms;
• Women’s rights;
• Indigenous rights; and
• Children’s rights.

Dunn, Court Rules That Emissions Reduction Is a Human Right^[13]

In a closely-watched case that could have wide ramifications for litigation worldwide, the court [Supreme Court of the Netherlands] ruled that the Dutch government must reduce emissions by at least 25% by the end of 2020 compared to 1990 levels, going beyond the EU-wide objective of 20%.

The Supreme Court said on Friday that it based its judgement on the UN Climate Convention and the obligations of the state under the European Convention on Human Rights. (…) In a brief summary read in English, the judge presiding over the court noted that European Human Rights Convention Articles 2 and 8—the right to life and the right to respect for private and family life—indicate that action on climate change falls under the umbrella of human rights protection.

“These articles entail the positive obligation for the Dutch state to take reasonable and appropriate measures to protect the residents of the Netherlands from the serious risk of a dangerous climate change, that would threaten the lives and wellbeing of many people in the Netherlands,” he said. That obligation to apply the provisions of the Convention trumped the state’s argument that politicians—not the courts—are responsible for determining emissions reductions, the Court said.

The Urgenda case has gotten the furthest of all international litigation regarding climate change, according to Michael Gerrard, founder and director of the Sabin Center for Climate Change Law at Columbia University. Together with the law firm Arnold & Porter, the Center runs a database to track climate change litigation both internationally and in the U.S. “There have been 1,442 climate change lawsuits worldwide. This is the strongest decision ever,” said Gerrard. “The Dutch Supreme Court has upheld the first court order anywhere directing a country to slash its greenhouse gas emissions. This decision may inspire even more cases in other countries.”

That was a sentiment that was echoed by Markus Gehring, an expert in sustainable development law at the University of Cambridge. “The beauty is you only need one successful case,” he said. “There is [now] an expectation that climate litigation will multiply.”

The overall success of climate change litigation has so far been mixed, he said, with some cases focusing on government responsibility and others focusing on major emitters, including energy companies.

Gonzalez, The Global Food System, Environmental Protection, and Human Rights^[14]

Introduction

The global food system is exceeding ecological limits while failing to meet the food needs of a large segment of the world’s population. According to the United Nations Food and Agriculture Organization (FAO), more people are undernourished today than forty years ago. Approximately 925 million people experience chronic food insecurity (…). The widespread industrialization of agricultural production places enormous pressure on the world’s ecosystems, causing soil degradation, deforestation, loss of agrobiodiversity, and the contamination and depletion of freshwater resources. Agriculture, a major source of anthropogenic greenhouse gas emissions, contributes to climate change; and climate change threatens global food production by increasing the frequency and severity of droughts, floods and hurricanes, depressing agricultural yields, and placing yet additional stress on finite water resources. This article examines the underlying causes of the converging food, agrobiodiversity, and climate crises, and proposes integrated measures that the international community might take through law and regulation to promote a more just, resilient, and sustainable food system.

Agriculture is currently the principal driver of biodiversity loss, primarily through the conversion of forests, grasslands, and wetlands to large-scale agricultural production, but also through unsustainable rates of water use, pollution of lakes and rivers, and introduction of nonnative species. The United Nations Millennium Ecosystem Assessment concluded that approximately 60 percent of the ecosystem services examined have been degraded or used unsustainably to satisfy growing demands for food, water, timber, and fuel. This degradation of ecosystem services disproportionately impacts the rural poor, and impedes efforts to combat poverty and hunger.

The genetic diversity of the world’s food supply is also threatened. Seventy-five percent of the world’s food crop diversity was lost in the twentieth century as farmers abandoned traditional food crops in favor of a narrow range of domesticated plant species. Only 12 crops currently supply 80 percent of our dietary energy from plants. Genetic diversity within these crops has been declining as well because high-yielding varieties have supplanted traditional local varieties. This loss of genetic diversity increases the risk of catastrophic crop failure (…).

Climate change will exacerbate food insecurity and loss of biodiversity. Water scarce regions of the world are predicted to experience chronic drought as the climate becomes hotter and drier, with severe impacts in the semi-arid areas of Latin America and Sub-Saharan Africa. Coastal areas will be buffeted by hurricanes, rising sea levels, and floods. Climate change is also anticipated to have devastating impacts on biodiversity – reducing the productivity of the world’s fisheries and accelerating the extinction of species and the loss of ecosystem services vital to food production. The households and countries most likely to be adversely affected are those most reliant on local agricultural production, which already face chronic food insecurity.

Ironically, agriculture is also one of the greatest contributors to global warming. Agriculture is responsible for nearly one third of global anthropogenic greenhouse gas emissions, including nitrous oxide from increased fertilizer use, methane from rice and livestock production, carbon dioxide from the clearing of forests to create agricultural land, and indirect emissions from the manufacture of fossil fuel-based agricultural inputs and from the processing, packaging and transportation of food.

Interrelated Problems: Integrated Solutions

When designing system-based solutions to the converging food, climate, and agrobiodiversity crises, it is useful to keep in mind three key propositions.

First, poverty rather than food scarcity is generally the cause of chronic malnutrition. Global food production has outpaced population growth since 1950, and there is currently sufficient food to satisfy the nutritional needs of every human being. People go hungry, even in countries where food is abundant, because they are poor. The majority of the world’s undernourished people are small farmers in developing countries who are net buyers of food. These farmers’ income is often too low to enable them to purchase the food available on the market. Thus, combating hunger requires increasing the income of small farmers in the developing world rather than simply boosting food production.

Second, agrobiodiversity is essential to the integrity and resilience of the world’s food supply. Cultivating a variety of crops provides insurance against environmental shocks, diversifies food sources, enhances soil fertility, and conserves the genetic resources necessary to breed plant varieties that can withstand the stresses associated with climate change, including salinity, heat, flood, and drought. Historically, small farmers have played an essential role in conserving and enhancing the world’s agrobiodiversity. However, the rapid expansion of industrial agriculture has produced a worldwide decline in agrobiodiversity, marginalized small farmers, eroded farmers’ self-sufficiency, and diminished traditional agricultural knowledge while fostering dependence on expensive seeds, pesticides, fertilizers and machinery produced by a small number of transnational corporations. Thus, trade and production policies that enhance the livelihoods of small farmers and encourage the cultivation of diverse crops and diverse genetic varieties are essential for the health and resilience of the world’s agroecosystems.

Finally, agriculture can play a significant role in climate change mitigation and adaptation. Sustainable agriculture seeks to maximize natural pest, nutrient, soil and water management technologies while reducing agrochemical use and enhancing agrobiodiversity. By minimizing the use of fossil-fuel based agrochemicals, sustainable farming practices produce fewer greenhouse gas emissions than industrial agriculture. By utilizing animal manure, crop rotation, intercropping, and agroforestry, sustainable agriculture reduces soil erosion and enhances carbon sequestration in both soils and above-ground vegetation. By increasing the organic matter in soils and enhancing the soil’s water retention capacity, sustainable farming practices boost agricultural productivity and increase resilience to floods and droughts. The cultivation of genetically diverse crop varieties improves resistance to weather-related events, pests, and diseases. Thus, agricultural trade and production policies that promote sustainable agriculture will enhance food security, conserve biological diversity, and contribute to climate change mitigation and adaptation.

Anton, Is the Environment a Human Rights Issue?^[15]

Tension or Complementarity?

The assertions in the Stockholm Declaration [“[m]an 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.”] sparked an early academic search for jurisprudential underpinnings for linkages between human rights and the environment. A number of texts and articles made their appearance in which the international legal case was made for “the human rights of individuals to be guaranteed a pure, healthful, and decent environment.” W. Paul Gormley, (1976).

Today, the protection of the environment and promotion of human rights are increasingly seen by many as intertwined, complementary goals. For Christopher Weeramantry, a former Vice-President of the International Court of Justice, this is self-evident (…): ‘The protection of the environment is . . . a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.’ [1997]

Yet, other scholars reject the connection between human rights and the environment and see incompatibility or even danger in their coupling. They see human rights and environmental protection based on fundamentally different and ultimately irreconcilable value systems. These differences are, to them, much more likely to lead to conflict than to be complementary. The arguments proceed, on the one hand, with some environmental lawyers maintaining that a human rights focus for environmental law ultimately reduces all other environmental values to an instrumental use for humanity so that the quality of human life can be enhanced. This human-centered, utilitarian view reduces the non-human and nonliving aspects of ecosystems to their economic value to humans and promotes unsustainable resource exploitation and environmental degradation as a human good. Furthermore, some human rights lawyers believe that linking human rights and the environment diminishes the importance and focus on protection of more immediate human rights concerns such as ending genocide, extra judicial killings, torture, and arbitrary detention.

Professor Dinah Shelton posits a third view which she says seems to best reflect the current state of play in law and policy. ‘[This view] sees human rights and environmental protection as each representing different, but overlapping, societal values. The two fields share a core of common interests and objectives, although obviously not all human rights violations are necessarily linked to environmental degradation. Likewise, environmental issues cannot always be addressed effectively within the human rights framework, and any attempt to force all such issues into a human rights rubric may fundamentally distort the concept of human rights. This approach [thus] recognizes the potential conflicts between environmental protection and human rights, but also the contribution each field can make to achieving their common objectives.’

Relationship between Human Rights and the Environment

The relationship may be conceived in two main ways. First, environmental protection may be cast as a means to the end of fulfilling human rights standards. Since degraded physical environments contribute directly to infringements of the human rights to life, health, and livelihood, acts leading to environmental degradation may constitute an immediate violation of internationally recognized human rights. The creation of a reliable and effective system of environmental protection would help ensure the well-being of future generations as well as the survival of those persons, often including indigenous or economically marginalized groups, who depend immediately upon natural resources for their livelihoods.

In the second approach, the legal protection of human rights is an effective means to achieving the ends of conservation and environmental protection. Thus the full realization of a broad spectrum of first and second generation rights would constitute a society and a political order in which claims for environmental protection are more likely to be respected.

A more ambitious variant of this view provides that there is and should be an inalienable human right to a satisfactory environment, and that legal means should exist to enforce this right in a consistent and effective manner. Put in these terms, it is no longer the impact of the environment on other human rights which is the law’s focus; but the quality of the environment itself. Expressed in this qualitative way, a right to a decent environment has much in common with other claims, such as sustainable development or intergenerational equity, and suffers comparable problems of subjectivity, definition, and relativity which make it inherently problematic for any notion of universal human rights.

Background (Cambodia)

Christoplos & McGinn, Climate Change Adaptation from Human Rights Perspective^[16]

In Cambodia, concerns about climate justice (i.e. measures which seek to rectify the ‘inverse relationship between climate risk and responsibility’ [Barrett 2014: 130]) are seen by some to indicate the need for action in countries with large-scale emissions. Moreover, several interviewees indicated that there is a tendency to label more immediate problems (e.g. the impact of dams or deforestation) as being instead due to CC in order to shift the blame to developed countries and exonerate those actors within Cambodia who are responsible for environmental destruction. In this sense, the language of CCA has been co-opted to serve elite interests. One senior government official even indicated that unless donor countries were prepared to ‘step up to the plate’ and pay more than the (short-term) profits that can be reaped from exploitation of the forests, there is no reason for Cambodia to slow the current pace of destruction. ‘We look at mitigation from the perspective of an LDC, which is that we implement mitigation as long it supports sustainable development and the rich countries fund it,’ he explained. ‘Why would countries like us [protect forests]? We need development. Under the current market model there is no other way.’

            There is a clear recognition that widespread deforestation is both contributing to CC and reducing the adaptive capacities of the populations living in the (often formerly) forested areas. Nonetheless, there is also considerable ambivalence about how this recognition should influence courses of action. This may reflect, in part, the government’s persistent downplaying of the scale and effect of deforestation in Cambodia, and NGO reluctance to risk government partnerships by openly challenging that. While cross-cutting issues are recognised, action largely remains firmly boundaried within agencies’ long-standing modi operandi. Both advocacy and operational strategies are corralled into ‘silos’ – and this is true for human rights as well as development agencies. Organisational inertia is compounded by resignation and fear about political repercussions of challenging elite interests.

            While some human rights organisations address access to essential livelihood resources, most focus (usually exclusively) on legal rights and the judicial sector. As such they actively contest the legality of the ELCs and other ‘land grabs,’ but rarely address a population’s rights to protection from climate risks per se. These agencies clearly focus on the formal accountability of duty bearers to follow the law. There is some understanding of how, in principle, these accountabilities extend to issues related to CC, but this is not regarded as part of their mandate. The reduction in vulnerability to CC that results from the protection of farmland and forests is seen as a positive externality rather than as a justification for these efforts. There is also some criticism that human rights in Cambodia is dominated by a set of concerns defined by urban elite lawyers, and that the human rights agencies fail to adopt a broad approach to empowerment of the marginalised. (…)

            Probably the most glaring environmental policy implementation gap is in law enforcement. Local government is universally seen as powerless to enforce laws which safeguard either the environment or environmental defenders when powerful actors are the culprit. Four factors emerged from our interviews which stymie efforts to hold local duty bearers to account for protecting the environment and respecting the rights of resource users.

Instruments (Cambodia)

ASEAN, Human Rights Declaration^[17]

28. Every person has the right to an adequate standard of living for himself or herself and his or her family including: (…)

e. The right to safe drinking water and sanitation;

f. The right to a safe, clean and sustainable environment.

Constitution of the Kingdom of Cambodia^[18]

Article 59: The State shall preserve and protect the environment and the balance of natural resources, by organizing a precise planning for the management, especially of the land, water, atmosphere, air, geology, ecological systems, mines, energy, petroleum and gas, rocks, sand, gems, forests and forest by-products, wildlife, fish and aquatic resources.

Article 72: The health of the people shall be guaranteed. The State shall give full consideration to disease prevention and medical cares. Poor people shall receive free medical consultations in public hospitals, infirmaries and maternities. (…)

Law on Environmental Protection and Natural Resources Management^[19]

Article 1

The purposes of this law are:

• To protect and promote environmental quality and public health through the prevention, reduction, and control of pollution.
• To assess the environmental impact of all proposed projects prior to the issuance of a decision by Royal Government.
• To ensure the rational and sustainable conservation, development, management, and use of natural resources of the Kingdom of Cambodia.
• To encourage and enable the public to participate in environmental protection and natural resource management.
• To suppress any acts that cause harm to the environment.

Article 6: An environmental impacts assessment shall be carried out on every project and activity of either private or public and shall be examined and evaluated by the Ministry of Environment before it is submitted to the Royal Government for decision. (…)

Article 7: Every Investment Project Application and proposed project which are submitted by the State, shall enclose with them a preliminary Environmental Impact Assessment or Environmental Impact Assessment as stated the article 6 of this law. The Ministry of Environment shall consider and make recommendations on the preliminary Environmental Impact Assessment or Environmental Impact Assessment to relevant competent bodies within a period as determined in the Law on Investment of the Kingdom of Cambodia.

Forestry Law^[20]

Article 1

This law defines the framework for management, harvesting, use, development and conservation of the forests in the Kingdom of Cambodia.

            The objective of this law is to ensure the sustainable management of these forests for their social, economic and environmental benefits, including conservation of biological diversity and cultural heritage.

Article 4

This law shall be implemented to ensure public participation in any government decision that has the potential for heavy impact on concerned general citizens, livelihoods of local communities and forest resources of the Kingdom of Cambodia.

            Consistent with the Cambodian code of forest management and the Environmental Protection and Natural Resources Law, an Environmental and Social Impact Assessment shall be prepared for any major forest ecosystem related activity that may cause adverse impact on society and environment. Document of the Environmental and Social Impact Assessment shall be made available for public comment.

            Any final decisions by the Royal Government on major forest ecosystems related activities must consider the recommendations of the final Environmental and Social Impact Assessment. The Royal Government can publicly notice any final decisions under this article.

Article 19

All concessionaires shall include the Environmental and Social Impact Assessment in their Forest Concession Management Plan in accordance with provisions of this law; and other regulations on Forest Concession Management. (…)

            Ministry of Agriculture, Forestry and Fisheries shall ensure that the Forest Concession Management Plan and the Environmental and Social Impact Assessment are available for public comment prior to the issuance of harvest permit for Forest Products & By-products.

Draft of Environment and Natural Resources Code of Cambodia^[21]

Article 2: Objectives

The following are the objectives of the Environment and Natural Resource Code:

a) Protect the environment to avoid and mitigate disasters and environmental harm;

b) Conserve, manage, and enhance biodiversity, natural resources, and ecosystem services;

e) Enhance and protect the rights of all individuals and the collective rights of indigenous people throughout the process of managing, protecting, and conserving natural resources throughout the Kingdom of Cambodia;

h) Promote a cooperative, transparent, and inclusive approach for environmental protection and naural resource management with participation of the Royal Government of Cambodia, communities, property holders, indigenous people, and vulnerable people, including minorities, women, youth, disabled people, and the marginalized;

Article 4: Obligation to Avoid Environmental Harm (…)

No natural person or legal entity shall commence any activity that causes or may likely cause environmental harm or damages unless such natural person or legal entity takes all reasonable measures to protect the environment and natural resources and prevent or minimise the environmental harm.

Article 5: The Principle of Public Participation (…)

All persons who may be affected directly or indirectly by a decision concerning the environment and natural resources shall be entitled to provide informed and timely inputs prior to the decision being made through a transparent, inclusive, and accountable process.

Article 6: The Principle of Access to Environmental Information (…)

All natural persons and legal entities shall have access to information concerning the environment and natural resources.

All information on environmental protection and natural resource management shall be made widely available and publicly accessible in a manner that maximizes the opportunity for public participation in planning and decisions affecting the environment and society.

Article 7: The Principle of Access to Effective Remedies (…)

All natural persons and legal entities shall have access to appropriate administrative, judicial, or other appropriate venues to enable the effective resolution of environmental dispute.

There shall be impartial and effective grievance mechanisms to enforce procedural rights, encourage compliance, and punish those who cause harm to the environment, society and natural resources.

Article 8: The Polluter Pays Principles (…)

All natural persons, private legal entities, and public legal entities who cause harm to the environment and society shall bear the cost for repairing the harm and for measures to prevent, avoid, and mitigate the harm to the environment and society.

Article 14: The Principle of Gender Equality in Environmental Protection and Natural Resources Management

Gender equity and the participation of women in all aspects of decision-making concerning the environment and natural resources shall be promoted and encouraged.

Article 18: The Principle of Free, Prior, and Informed Consent for Indigenous Communities

Any proposed activity or project that may affect indigenous peoples’ land or other resources, especially in relation to the development, use, or exploitation of natural resources, must receive the indigenous peoples’ free, prior, and informed consent.

Article 88: Environmental Impact Assessment

This title determines environmental impact assessments caused by all development projects that may create impacts on the environment, health, society, economy and culture.

Article 922: Affected Persons

Persons directly or indirectly affected by environment and natural resources offences reserve the right to file a complaint with the competent court for mitigation or compensation of the relevant damage and impacts in compliance with this Code and the in-force Code of Civil Procedure of the Kingdom of Cambodia.

            The complaint may be filed by a relevant community to oppose any environment or natural resources offence, or any offence against the provisions in accordance with this Code and the in-force Code of Civil Procedure of the Kingdom of Cambodia, and filed by a community representative. The community representative shall provide relevant evidence to prove the representation right granted by the affected community.

Ministry of Industry, Climate Change Strategic Plan for Manufacturing Industry^[22]

4.  Policies and Strategies Respond to Climate Change in Industrial and Energy Sectors

Ministry of Industry, Mines and Energy has focused on preparing an energy policy and energy development plan as a key role for the support other sectors development in the country through transferring of technology on renewable energy and energy efficiency. (…)

4.1. Industry Sector

A. Energy Efficiency in Industrial Sector

(…) Being an “alternative-energy disadvantaged” country, energy efficiency appears to offer the best solution for Cambodia to meet its climate change targets. In developing country, such a Cambodia is not fully adopted or changed for alternative uses of fusil oil. The alternative approaches such as energy efficiency including energy savings and efficient energy consumption are the best solution for Cambodia enhanced and considered in order to reduce greenhouse gas emission and climate change reduction.

            In Industry Sector, the three higher operating expenses are often found to be energy (both electrical and thermal), labor and materials. Among these three components, energy is the most potential in cost reduction especially in Cambodia. Thus, implementing of energy efficiency means one can save a lot of money as well as reduction of environmental impact.

• Food sector
• Rice milling
• Garment and textile manufacturing sector
• Brick and tile production (Brick kiln)
• Paper and pulping paper production.

B. Green Industry

Green Industry is industrial production and development that does not come at the expense of health of natural system, or lead to adverse human health outcomes and mainstreaming environmental, climate and social considerations into the operations of enterprises. It provides a platform for addressing global, inter-related challenges through a set of immediately actionable cross-cutting approaches and strategies that take advantage of emerging industry and market forces. Green Industry stimulates technological advances and innovation, as well as the development of new industries. It not only reduces environmental impacts but spurs innovation, thereby creating business opportunities and new jobs, thus contributing to poverty alleviation.

            Green industry involves a two-pronged strategy to create an industrial system that does not require the ever-growing use of natural resources and pollution for growth and expansion. These two components are:

• The greening of existing industry
• And the creation of “Green Industries”.

C. Identification, assessment and prioritization of pollution and transfer of environmentally sound technologies (Test and Hot-Spot)

This project’s aim is help enterprises to overcome those challenges and obstacles for substantial business process especially, reduce pollution from its operation which against climate change and increase the green growth in country.

• Hot-Spot Methodology
• Preliminary evaluation
• Detailed evaluation based on Biodiversity, Pollution control, Socio-economic and Water quality
• Prioritization of pollution Hot-Spots
• TEST methodology: Transfer Environmental Sound Technology Methodology (TEST) is one methodology, which involves each level of the management and combines the following essential elements such as: Cleaner Production (CP); Environmental Management Accounting (EMA); Environment Management System (EMS); and Corporate Social Responsibility (CSR).

• Environmental Management Accounting (EMA):

EMA focus on materials and related cost: the use of energy, water and materials, as well as the generation of waste and emissions, are directly related the environmental impacts of organizations and their products, and Material purchase costs and materials lost in waste and emissions are the most prominent cost drivers in many organizations; Especially in countries with low enforcement of legal compliance and relatively low labor costs, materials and energy use and related losses are a significant cost driver.

• Environmental Management System (EMS):

EMS is a systematic approach for incorporating energy and environment goals and priorities (such as energy use and regulatory compliance) into routine operations.

EMS is a system of interconnected parts: Environmental policy; Planning; Implementation and operation; Check and corrective action; Management review; with the goal to managing, the activities have or can have environment impacts. In addition, EMS provides a mechanism ensuring that company: Think of environment; decide what company wants to do; works out how to do it; implements as planed; corrects deviations from plan; review its directions for the future for better performance.

• Corporate Social Responsibility (CSR):

Responsibility of an organization for the impacts of its decisions and activities on society and the environment, through transparent and ethical behavior that:

• is consistent with sustainable development and the welfare of society;
• takes into account the expectations of stakeholders;
• is in compliance with applicable law and consistent with international norms of behavior;
• is integrated throughout the organization an in its relationships

There are 3 basic criteria: economic; environment; society. Fundamental subjects of CSR are organizational governance; Human rights; labor practices; environment; fair operating practices; consumer issues; social development (community involvement and development). (…)

Ministry of Environment, Guidebook on Environmental Impact Assessment^[23]

Who are stakeholders in this project scoping stage?

Stakeholders in the project scoping stage of an environmental impacts assessment are:

• Environmental Impact Assessment Department, Ministry of Environment;
• Project owner;
• Environmental impact assessment consultant and other experts;
• Other responsible agencies;
• Project Affected communities/public;
• Community/Public beneficiaries.(…)

What are the Environmental Impacts Mitigation Measurement?

Environmental Impacts Mitigation Measurement are activities or measures to avoid or reduce negative environmental impacts caused by project activities. Mitigation measurement refers to ecological system, economy, society and culture. Planning and implementation of a project may include many methods or options as its measure as follows:

• Make plan about project site or duration of activities to avoid impact on a specific resource or an easily impacted area;
• Include negative environmental impact mitigation measurement in the project design or project planning stage in order to reduce impacts in advance;
• Ensure a mitigation program to reduce negative environmental impact that may happen as the project operates;
• Ensure a mitigation program after the activities to restore resources or area impacted, or to replace the lost or damaged resource within the impacted area or other relevant area. For example, an issue of depletion of fresh‐water fish can be mitigated by provision of fish seedlings or by restoring rivers which are shelters to the fish.

Public participation

In the process of EIA on a development project, public participation should be made in three main stages:

• Project scoping stage;
• EIA report review stage;
• Project monitoring stage.

Phnom Penh Sugar Co, Social Responsibility^[24]

Phnom Penh Sugar Co., Ltd., a wholly owned subsidiary of LYP Group, always thrives to protect the surrounding environment and be the most environmentally friendly factory for the benefit of the nature and nearby community. The company takes comprehensive approaches to environmental responsibility as entail since the beginning of operation.

            Phnom Penh Sugar has dramatically reduced the environmental impact of its facilities. Material use and facility in house designed to be the most energy efficient factory in Cambodia. The company has built-in house systems to control and increase the energy efficiency of the material use inside the building and plant such as the real-time power monitoring and analytics during operation. In addition, building is designed with white cool-roof to provide maximum solar reflectivity. The power is distributed at higher voltages, which reduces power loss. Working environment is certified to have no pollution that can harm to human health as accredited by the Ministry of Industry Mine and Energy.

            Phnom Penh Sugar also invests into renewable energy and thereby helps residents nearby the area to live peacefully and safety from Greenhouse Gas effects. The company uses power energy generated mainly from baggasse, a by-product of the cane based sugar manufacturing process, to run the process of producing sugar. That baggase-generated power is said to be the clean energy that has very little negative drawback to the atmosphere in contrast to expensive and dirty diesel generators, the methods by which most of the country’s power is generated. With the power capacity of 16 Mw, 11 Mw is used within the plant and other facilities while the rest is sold to the government and village nearby the plant. In addition, Phnom Penh Sugar has invested USD 1.5 million in the transmission line linked from Thnol Tolteng to factory at Om Laeng, Thpung, Kompong Speu. It is 68.5 km long and that allows households along the road to access to power energy.

            As of factory waste and sewage, which is a toxic substance and is hazardous to environment and human health, the company had built seven lakes to store and transforms those harmful disposals into usable water and non-toxic waste. These seven lakes are built as a vacuum system that sewage drains from one lake to another lake. Gradually, sewage flows into the last lake and becomes bio-fertilizers that company gives away to cane grower to use in the farmland and villagers to use in their orchards.

            The company also invested in water-treatment system and water-storage filter that regenerates muddy water or water containing impurities to become clean and drinkable. The plant capacity is 5000 cubic meters per day. That clean water plant allows employees and villagers to have good quality water consumption and improve their health condition as well as reducing their expense on health care.

Young, Protest, Regulations and Environmental Accountability in Cambodia^[25]

5. Environmental Accountability of the Government: Re-Enforcing Regulations

5.1. Stung Cheay Areng Valley

Stung Cheay Areng valley is known as a biodiversity jewel of Southeast Asia.  In early 2014, the government of Cambodia granted a concession for hydropower development to a Chinese company, Sinohydro, to explore the feasibility of building a dam. … If this development project is to proceed, it would force more than 1,300 Chong indigenous peoples to abandon their ancestral lands and would flood a 9,500- hectare area that is home to some thirty globally endangered animal species (Peter and Narim, 2015) … the dam would block the flow of the river and destroy the downstream habitat for wild fish that is crucial to the local economy, and also critically endangered biodiversity of global significance. The dam would also alter the natural seasonal flow variation of the Stung Cheay Areng, which local communities depend upon to nourish over 600 hectares of rice paddies with nutrient-rich waters, according to International River (NGOs).

            With unfavourable impacts foreseen, the Chong indigenous communities in Cheay Areng valley, with the strong support of Mother Nature and other NGOs, have been protesting and advocating against the dam project proposed by Sinohydro. The purpose of this local movement is to put pressure on the government to call for the abandonment of the dam project, given the highly adverse impacts of the dam on the rich biodiversity and natural environment in this very large national park of Cambodia. (…)

            Nonetheless, in response to this movement, the government and local authorities, especially the provincial office of Koh Kong, threatened the communities and activists. Cambodian activists have often been arrested and spuriously charged. These activists were frequently accused of being secessionists, a typical accusation in Cambodia, and of instigating movements against the government. A movement leader and outspoken Spanish activist, the co-founder of Mother Nature (NGO), was deported from Cambodia (Teehan and Ponniah, 2015). (…)

6. Demand for Corporate Environmental Accountability as an End Goal

Protest movements of affected communities and NGOs have shifted their target considerably, from a focus on the government to corporations directly. Adjusting their goal to directly influence corporations has often been a result of instances where corporations held power over actors in the local government, and therefore limited the ability of the government to act or be influenced by protest movements to effect change. As exhibited in the case of a joint movement against sugar industry in three locations: Koh Kong, Kampong Speu, and Oddar Meanchey province, below, environmentally accountability of corporations is an ultimate goal of protest movements, but intervention of the government is still necessarily important to ensure corporations are held to account. On the one hand, this approach is considered to be more affective, and by targeting the corporation helps the movements to get rid of the government’s suppression and to avoid the allegation of being labelled as anti-government movements, which might be provoked by the opposition movements, on the other.

6.1. Protests and Environmental Accountability of the Sugar Industry

(…) Initially, the affected communities and NGOs employed domestic influencing strategies, including peaceful protest, petitions, local networking, and filing complaints to the local court, to put pressure on the government to regulate the sugarcane corporations and address the detrimental impacts. The government’s response was to negotiate with the sugarcane corporations to offer cash compensation, but this approach was considered unfair by the community, given that cash cannot compensate for lost land, livelihoods, and environmental damage. The government also failed to strictly regulate the sugarcane corporations for their adverse activities. Meanwhile, in collaboration with the corporations, the government repressed the movement activities of the sugarcane-affected communities and NGOs. The repressive activities included violently cracking down on non-violent protest in Koh Kong, violently vandalising farmers’ properties, the arrest and imprisonment of activists in Oddar Meanchey province, and intimidation of protestors in Kampong Speu. (…)

            After ineffectual domestic influencing strategies, the network of sugarcane-affected communities and NGOs, influenced by TANs, staged international supply chain movement approaches, including complaining to the investors in the country of origin (Thailand), in court to the sugar buyer corporations (United Kingdom), and finally to the EU’s Everything But Arms (EBA). In the meantime, the communities in Kampong Speu also filed a complaint against ANZ bank in Cambodia and in Australia, alleging that they were financial investors in the sugarcane corporations in Cambodia. At the time of this study, ANZ has denied the complaint and has taken no responsibility, since the sugarcane corporations have already repaid the loan.

            This shift in strategy by the movements resulted in increasing pressure directly on the sugar corporations and indirectly on the government. Complaining to the UK court and eventually the human right commission in Thailand exerted direct pressure on sugarcane corporations in Cambodia, even though it did not yield any significant results at the international juridical level. Complaining to the EU’s EBA leveraged extra pressure on both the government and the sugar corporations, and the EU’s parliament officially commented to the Cambodian government regarding the allegation and adverse impacts, but there were no clear direct results on the Cambodian government because of these actions. However, the international influencing strategies of the sugarcane-affected communities and NGOs did result in changing the behaviour of the sugarcane corporations in Koh Kong and Kampong Speu. For instance, in Koh Kong, the sugarcane corporations established a corporate social responsibility (CSR), eliminating child labour and mitigating some environmental issues. Although limited, this still represents an important degree of self-regulation on the part of the sugarcane corporations. For example, to address the environmental concerns of the communities, the corporations stopped clearing some sacred forest areas. To address the water contamination, the corporations and the provincial environmental departments dug new ponds to re-regulate the polluted water before discharging. To ensure long-term accountability for environmental impacts, the sugarcane corporations conducted environmental impact assessments and developed environmental management and mitigation plans in and surrounding the sugarcane processing factory compound (Young, 2015).

            In Kampong Speu, the sugarcane corporations have worked to address not only the environmental impacts but also to adopt CSR in an effort to harmonise their business with the surrounding communities. School construction, education, rural road improvements, job creation, good working conditions, and enduring environmentally friendly sugar processing factories have been observed in and around the plantation areas. To reduce the hazardous wastes, the sugarcane corporations built several ponds to store and treat the harmful waste, so that it can be turned into useable water and nontoxic waste. In addition, the non-toxic waste is now also being converted to bio-fertilisers for re-use at sugarcane plantations and for local farmers’ growing fields. (…)

            (…) As a result of pressure generated on an international level, the corporations were inclined to resolve environmental impacts, such as returning land, providing cash compensation, conserving forestland, mitigating water contamination, soil erosion, and so on, as demanded by the affected communities and NGOs. As noted, these mitigations by the corporations for their adverse environmental impacts were ultimately made possible by actions of the government, to mediate and re-enforce regulations. The corporations then complied with the environmental regulations and government policies. To assure improved relations with workers and within the broader local context, corporations also took on longer term accountability by self-regulating to adopt corporate social and environmental responsibility and codes of conduct (CSR).

Hoy, Analysis of Sand Extraction and Use in a Coastal Community Fishery^[26]

Coastal resources need to be maintained in order to support the livelihoods and well-being of local coastal resources-dependent communities, as well to provide a balanced set of ecosystem goods and services. However, development projects along the coastal areas of Cambodia have been implemented at an alarming rate in recent decades, including infrastructure projects such as ports, modern settlements, resorts and tourist destinations. In addition to these development projects, coastal areas have been exposed to mining exploration and exploitation activities, and as a result, the coastal environment has not been able to avoid the negative consequences of these. (…)

            Based on the results of this study, there are two main driving forces behind the changes taking place in the area, these being the sand dredging activities and infrastructure developments, both of which are placing pressure on the coastal environment and leading to environmental change, plus having a negative impact on coastal ecosystems and community livelihoods. As a result, coastal resources such as seagrass, mangroves and fish are under increasing pressure, damaging community livelihoods, causing changes to the local natural and social environment, leading to decreasing fish yields and reductions in income levels, and also causing labor, migration, health and sanitation problems, as well as instigating local conflicts. The responses of the key stakeholders, such as the communities, local authorities, NGOs and private companies, to the above issues, have been limited and unacceptable thus far from the local communities’ perspectives.

CCCA/GSSD, Better Fuel, Better Future^[27]

Mitigation Can Help Reduce the Impact of Climate Change

An important mitigation activity is finding low-emission fuel sources. Emissions are measured in tones of CO2 emissions (tCO2e), and it is estimated that the garment industry in Cambodia creates 368,000 t CO2e per year by burning wood for energy. Alternative fuel sources could enable Cambodia to lower its emissions, and to be a global leader showing other nations how emissions can be mitigated.

            Following more than two decades of strong economic growth, Cambodia attained lower middle income status in 2015. Driven mostly by the garment industry, which represents 11% of the country’s GDP, this impressive economic performance comes at a high environmental cost. The garment sector is a large consumer of energy in Cambodia, consuming 301,000 metric tons of firewood every year, equivalent to 3,500 hectares of deciduous forest every year.

            According to Cambodia’s Nationally Determined Contribution (NDC), ‘Efforts in addressing climate change in Cambodia cannot be separated from economic development and poverty alleviation goals. Cambodia has more than 57% forest cover the pressure on resources and land is high. 

As of 2018, it is estimated that 70% of the garment industry’s thermal energy is unsustainably provided by natural forests, sourced either from forest conversion for agriculture or from illegal harvesting. To switch to cleaner production of garments in Cambodia, a number of barriers need to be overcome, including a lack of large scale supply of sustainable biomass fuels, and a lack of incentives for factories to switch sources, leading to low profitability of sustainable energy plantations. (…)

Benefit 2: International Partnership – Mitigation in Good Corporate Social Responsibility

A key part of the activity was co-operation between international buyers – in this case H&M, a major garment business operating around the world – and Cambodian garment factories who manufacture and supply garments to buyers.

            GERES and H&M discussed the energy usage of H&M-supplying factories, and estimated that these factories burn more than 72,000 metric tons of wood each year, and that it is very likely that this energy use directly contributes to deforestation. H&M were clear that this is a matter of concern, and that they would like to identify legal and sustainable fuel options for its suppliers.

H&M is developing renewable energy targets to drive its transition towards a carbon-neutral supply chain. To enable this, GERES and H&M initiated a partnership, with H&M supporting GERES financially and connecting GERES to its network of suppliers, while GERES supports the emergence of a supply chain of alternative biomass fuel by demonstrating that renewable energy sources are technically and economically feasible for the garment industry.

            For the RHB project, this meant that, while GERES worked with rice millers, H&M used their position and influence with garment factories to encourage and enable them to switch their energy sources from wood and towards RHBs.

            H&M’s responsible staff member for their Environmental sustainability Program in Cambodia and Vietnam, Aurélie Pruvost, said, “H&M’ set an ambition to achieve a climate neutral supply chain by 2030). One of our main milestones is to reduce 30% of GHG emissions per product by 2025. We want to support the transition into renewable energy for the whole world by using renewable energy ourselves. Working with actors like GERES is crucial to be able to propose concrete renewable energy solutions to our suppliers.” 

Ek, Cambodia Environmental and Climate Change Policy Brief^[28]

3. What are the effects of the environmental problems?

The natural resources in Cambodia are threatened by short-sighted overexploitation on an increasing and threatening scale. This reduces the country’s overall natural capital, yet whilst great benefits flow to the few; equally great burdens fall on the many, in particular the rural communities whose well-being and livelihoods are based on natural resources management. If the over-exploitation of current scope and scale continues, Cambodia’s future socio-economic development is at risk. (…)

3.1 Impacts on poverty

Besides agriculture, fisheries and forest resources play a critical role supporting livelihoods in Cambodia, especially in providing diversifying subsistence and income-generating activities. Combined they provide a safety net to families during difficult times. (…)

Lack of assets

The people living in poverty face a number of interlocking and mutually reinforcing problems, including lack of secure land tenure, remoteness from markets and services, lack of productive assets, lack of access to decision-making processes, low levels of education and high dependency ratios. Land is one of the high-value resources, and land grabbing a serious problem.

            For instance, when forest land is given away to private companies through land concessions the space for rural communities to access natural resources, particularly non timber forest products (NTFP), is reduced and might trigger migration to cities were they are at a risk to become marginalized and without secure employment. A similar problem arises when fishing lots in rivers and Tonle Sap lake are given away to private investors. Both food security and income generation opportunities are seriously hampered as the possibility to find protein and sell excess fish catch on local markets are reduced.

Vulnerability

Cambodia is one of the most disaster affected countries in South East Asia, and the impact of these disasters is felt most in rural areas, where the large majority of the poor live. (…) The people living in poverty are more vulnerable to external shocks due to limited asset base, livelihood opportunities and little access to decision-making, and have less ability to adapt to environmental changes. (…)

Security

Lack of security is a fundamental dimension of poverty. The main environment-related security issues in Cambodia are related to decreasing resilience of ecosystems, unreliable access to food and water, lack of secure tenure to land, lack of access to resource-based safety-nets such as goods and services from the natural commons (forests, fish, etc), low ability of households to accumulate assets including natural capital, pollution, and existence of conflicts over resources. Women are disproportionately at risk from environmental degradation, conflicts, and natural disasters, due to gender roles, and historic, cultural and socio-economic reasons. (…)

Gender aspects

The depletion of biodiversity and natural resources hits women hardest. They often have a key role in rural households of refining and monetize the “harvest” from fields, forests and fisheries for example by selling excess fish catch at local markets or manufacture handicraft from NTFP for urban consumers and tourists. This position enables them to wield influence both in the family and in the community given their importance for access to financial resources providing added value to the subsistence-based economy. When a natural resource-based livelihood no longer is possible in a household due to biodiversity degradation or an infrastructure development, the women lose this position and opportunities for alternative employment (like working on dam construction or at a plantation) arising is usually open only for men.(…)

3.3 Impacts on Public Health

As described in 3.1 the abundance of protein from fish, carbon hydrates from inundated rice fields and vitamins from riverside gardens all depending on the services of the Mekong and its watered by the Mekong provide Cambodians with a healthy diet. Badly planned infrastructure development on the river ecosystem may therefore cause malnutrition and other serious health problems in the country if impacts are not mitigated or alternative food sources are developed which might be difficult given the efficiency of the freshwater ecosystem. In addition, degradation of soil quality and hence productivity in agriculture due to a sustained use of agrochemicals and unsustainable farming practices is also in issues for concern.

            The low electrification rate in rural areas means difficulties in keeping food fresh and conserving medicines due to lack of refrigerators, higher incidence of respiratory diseases due to excessive wood fuel use as well as reliance on diesel and kerosene for providing electricity and lighting which contribute to higher risk of household fires and inhaling of unhealthy fumes.

            Climate change will favour warm and wet conditions that may raise the incidence of malaria. (…) With rising temperatures the impact on rice yield is predicted to be significant, yields are predicted to decrease under both high and low emission scenarios, not least because of increased incidence of pests and disease. Reduction in rice yields, the crop being a staple food, is therefore a potential health hazard. (…)

Questions

1. Can you explain the link between human rights and environmental protection? Why is the UN paying more attention to this link?
2. Is clean environment a human right?
3. Are environmental regulations more advanced and better enforced in Cambodia compared with human rights?
4. Do Cambodian environmental laws requiring businesses to conduct environmental impact assessments oblige them to consider social and human rights impacts as well?
5. How successful has CSR been in protecting the environment in Cambodia?
6. Does nature have rights?

Further Readings

• Special Rapporteur on Human rights and the Environment, Selected Sources for Framework Principles on Human Rights and the Environment (2018) www.ohchr.org/Documents/Issues/Environment/SREnvironment/ListSourcesFrameworkPrinciples.pdf.   
• Special Rapporteur on the Implications for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes, Annual Reports, www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/Annual.aspx.
• Mary Robinson, Why Climate Change is a Threat to Human Rights, TEDtalks (2015) www.ted.com/talks/mary_robinson_why_climate_change_is_a_threat_to_human_rights/footnotes?referrer=playlist-486.
• Council of Europe, Manual on Human Rights and the Environment (2012) www.echr.coe.int/LibraryDocs/DH_DEV_Manual_Environment_Eng.pdf.
• Business & Human Rights Resource Centre, Climate Litigation against Companies: An Overview of Legal Arguments (June 2019) www.business-humanrights.org/en/corporate-legal-accountability/special-issues/climate-change-litigation.
• UNDP, Human Development Report Cambodia – Sustaining Natural Resources for All (2019) http://hdr.undp.org/sites/default/files/nhdr_cambodia.pdf.
• Cambodia, Sub-Decree on Environmental Impact Assessment Process (1999) http://www.cambodiainvestment.gov.kh/sub-decree-72-anrk-bk-on-environment-impact-assessment-process-pdf_990811.html.
• Royal Government of Cambodia, National Environment Strategy and Action Plan 2016-2023 (2017) https://policy.asiapacificenergy.org/sites/default/files/National%20Environment%20Strategy%20and%20Action%20Plan_NESAP_2016-2023.pdf.
• Ross Natividad, ‘Consequences of Cambodia’s Rubber Boom: Assessing the Governmental, Environmental, and Human Rights Violations in the Industry’s Current Regulatory Framework’, William & Mary Environmental Law and Policy Review, 40:3 (2016) https://scholarship.law.wm.edu/wmelpr/vol40/iss3/8.
• Matthew Baird, ‘Environmental Impact Assessment in Cambodia – Law and Practice’, in Kong et al., Contemporary Environmental Law in Cambodia and Future Perspectives, Konrad Adenauer Stiftung, (2020) pp. 43-53, https://www.kas.de/documents/264850/8652138/Contemporary+Environmental+Law+in+Cambodia+and+Future+Perspectives.pdf/1d483f29-615b-f02c-6f1b-48a1411d5452?t=1587641697247.
• Sherchan Depika, Cambodia: The Bitter Taste of Sugar Displacement and Dispossession in Oddar Meanchey Province, Action Aid Cambodia and Oxfam GB (2015) https://cambodia.actionaid.org/publications/cambodia-bitter-taste-sugar-displacement-and-dispossession-oddar-meanchey-province.
• EarthRights International, Environmental Impact Assessment in the Mekong Region: Materials and Commentary (First Edition) (2016) pp. 32-44, https://earthrights.org/wp-content/uploads/eia_manual_final_0.pdf.
• International Federation for Human Rights (FIDH), Cambodia Land Cleared for Rubber Rights Bulldozed: The Impact of Rubber Plantations by Socfin-KCD on Indigenous Communities in Bousra, Mondulkiri (2011) https://www.fidh.org/IMG/pdf/report_cambodia_socfin-kcd_low_def.pdf.
• Global Witness, Shifting Sand – How Singapore’s Demand for Cambodian Sand Threatens Ecosystems and Undermines Good Governance (2010) https://www.globalwitness.org/en/archive/shifting-sand-how-singapores-demand-cambodian-sand-threatens-ecosystems-and-undermines-good/.
• Oung Ty Keithya, Environment and Climate Change, https://www.kas.de/en/web/kambodscha/single-title/-/content/environment-and-climate-change.

Amnesty International, Cambodia: Harassment of Forest Defenders Undermines Struggle Against Climate Change, Amnesty International Public Statement (2020) https://media.business-humanrights.org/media/documents/d0a040dd3ab74639eccc62380a1a737f98c66927.PDF.

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^[1] John H. Knox, Preliminary Report, UN Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, A/HRC/25/53 (2012) www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session25/Documents/A-HRC-25-53_en.doc.

^[2] John H. Knox, Climate Change, UN Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, A/HRC/31/52 (2016) http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/31/52&Lang=E.

^[3] John H. Knox, Biodiversity, UN Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, A/HRC/34/49(2017) http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/34/49&Lang=E (references omitted).

^[4] John H. Knox, Framework Principles on Human Rights and the Environment, Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment,A/HRC/37/59(2018) https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/017/42/PDF/G1801742.pdf?OpenElement.

^[5] John H. Knox, Compilation of Good Practices, UN Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, A/HRC/28/61 (2015) http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/28/61

^[6] UN, The Paris Agreement on Climate Change (2015) https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement.

^[7] United Nations Economic Commission for Europe (UNECE), Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) 1998 www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf.  

^[8] Global Studies Institute, Individual Report on the European Convention on Human Rights and the European Union: Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, University of Geneva (2013) www.ohchr.org/Documents/Issues/Environment/Mappingreport/14.ECHR-EU-report-24-June-2014.docx (the full reference to the cases in this report was omitted. Please consult the original report).

^[9] Global Network for the Study of Human Rights and the Environment (GNHRE), Declaration on Human Rights and Climate Change, https://gnhre.org/declaration-human-rights-climate-change/.

^[10] UN Environment Programme UNEP), Climate Change and Human Rights (2015) http://apps.unep.org/publications/index.php?option=com_pub&task=download&file=011917_en.

^[11] Sumudu Atapattu, ‘Environmental Law Principles in Asia’, in Michael Faure (ed.), Elgar Encyclopedia of Environmental Law (2015) www.elgaronline.com/view/nlm-book/9781786436986/b-9781785365669-VI_33.xml.

^[12] Global Initiative for Economic, Social and Cultural Rights, The Practitioners Guide on Human Rights Based Approach related to the Environment and Climate Change (2014) https://hrbaportal.org/wp-content/files/GI-ESCR-Practitioners-Guide-Human-Rights-Environment-and-Climate-Change1.pdf.

^[13] Katherine Dunn, ‘Climate Change Litigation Enters a New Era as Court Rules that Emissions Reduction Is a Human Right’, Fortune (2019) https://fortune.com/2019/12/20/climate-change-litigation-human-rights-netherlands/.

^[14] Carmen G. Gonzalez, The Global Food System, Environmental Protection, and Human Rights (2012) https://ssrn.com/abstract=2004732 (references omitted).

^[15] Donald Anton, Is the Environment a Human Rights Issue? (2008) https://ssrn.com/abstract=1126470. 

^[16] Ian Christoplos & Colleen McGinn ‘Climate Change Adaptation from a Human Rights Perspective: Civil Society Experiences in Cambodia’, Forum for Development Studies, 43:3 (2016), pp. 437-461, https://doi.org/10.1080/08039410.2016.1199443.

^[17] Association of Southeast Asian Nations (ASEAN), ASEAN Human Rights Declaration (2012) https://www.asean.org/storage/images/ASEAN_RTK_2014/6_AHRD_Booklet.pdf.

^[18] Cambodia, Constitution of the Kingdom of Cambodia (1993) https://www.constituteproject.org/constitution/Cambodia_2008.pdf?lang=en.

^[19] Cambodia, Law on Environmental Protection and Natural Resources Management (1996) http://www.cambodiainvestment.gov.kh/wp-content/uploads/2011/09/Law-on-Environmental-Protection-and-Natural-Resource-Management_961224.pdf.

^[20] Cambodia, Forestry Law (2002) http://www.cambodiainvestment.gov.kh/law-on-forestry_020930.html.

^[21] Cambodia, Draft of Environment and Natural Resources Code of Cambodia (draft 9.1, 25 July 2017) http://matthewbaird.com.au/category/countries/asean/cambodia.

^[22] Ministry of Industry, Mines and Energy, Climate Change Strategic Plan for Manufacturing Industry and Energy (2013) https://www.cambodiaip.gov.kh/DocResources/ab9455cf-9eea-4adc-ae93-95d149c6d78c_007729c5-60a9-47f0-83ac-7f70420b9a34-en.pdf.

^[23] Ministry of Environment, Guidebook on Environmental Impact Assessment in the Kingdom of Cambodia (2012) http://ngoforum.org.kh/files/4cb32ea424c264c674c054ba18d2ffe8-Final-PK-official-eia-booklet-21-11-2012-Eng.pdf.

^[24] Phnom Penh Sugar Co. Ltd., Social Responsibility (accessed 1 December 2020) http://www.phnompenhsugar.com/community/social-responsibility.html.

^[25] Sokphea Young, ‘Protest, Regulations and Environmental Accountability in Cambodia’, Journal of Current Southeast Asian Affairs (2019) pp. 1-22, https://journals.sagepub.com/doi/10.1177/1868103419845515.

^[26] Sereivathanak Reasey Hoy, ‘DPSIR Analysis of Sand Extraction and Use in a Coastal Community Fishery: A Case Study of Boeng Tuk Commune, Tuek Chhou District in Kampot Province’, in Sophat Seak and Morrison Gary, Natural Resource Governance in Cambodia, Research Papers Volume 1 (2013), pp. 41-67, http://www.rupp.edu.kh/fds/dnrmd/documents/NRMDpaper-Natural%20Resource%20Governance-vol1.pdf.

^[27] CCCA/GSSD & National Council for Sustainable Development General Secretariat, Better Fuel, Better Future – How Private Sector Partnership Helps Cambodia Mitigate Climate Change and Burn Less Wood (2018) https://ncsd.moe.gov.kh/resources/document/better-fuel-better-future-how-private-sector-partnership-helps.

^[28] Göran Ek, Cambodia Environmental and Climate Change Policy Brief, Sida’s Helpdesk for Environment and Climate Change (2013) https://sidaenvironmenthelpdesk.se/digitalAssets/1683/1683320_cambodia-environmental-and-climate-change-policy-brief-2013.pdf.