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Human Rights and The Environment, Research Paper Example

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Research Paper

Part I

  • The literal translation of Forum Non Conveniens means forum which is not convenient.

This policy is strategically employed when the court chosen by the plaintiff can be construed as inconvenient for witnesses or be deemed to present an undue hardship for the defendants who must petition the court for an order transferring the case to a more convenient court (Kravchenko & Bonine, 2008, p.403). An example would be a lawsuit involving parties that live in different states and the plaintiff files the suit in their state of residence when the incident and all the witnesses reside in the defendant’s home state.

According to Kravchenko & Bonine (2008, p.412), the Spiliada case set the precedent for “the two-stage test for the doctrine of Forum Non Conveniens in English courts”.  The Spiliada Maritime Corporation vs. Cansulex Ltd. (1987) 1 AC 460 determines that Forum Non Conveniens can be granted only if the court is satisfied that there is another more suitable forum competent to handle the proceedings and suits the interest of justice and all parties concerned (Kravchenko & Bonine, 2008, p.419).  The courts must also determine if the new forum has suitable connecting factors that makes them a realistic candidate and if these are sufficient factors that merit such a suggestion (Kravchenko & Bonine, 2008, p.419).  Connecting factors include (i) convenience and expense, including availability of witnesses, (ii) the laws regarding Forum Non Conveniens, and (iii) locations of the residences and places of business for the parties involved (Kravchenko & Bonine, 2008, p.419).  However, despite evidence of prima facie, the court can still refuse to grant Forum Non Conveniens if such a motion would be detrimental to the service of justice (Kravchenko & Bonine, 2008, p.419).

In U. S. federal courts, the defendant must prove that both an adequate alternative forum is available and that changing to this forum favors both public and private interests (Kravchenko & Bonine, 2008, p.414).  However, in both circumstances, it is up to the discretion of the appellate courts whether the petition for Forum Non Conveniens is granted to the applicant.

The practical differences between these two tests lie in the placement of the burden of proof and how such proof is measured.  In English courts, there are more criterions that need to be met to meet the standard of Forum Non Conveniens but in the U.S. courts, there are only two ambiguous criterion that seem quite lofty.  However, both courts share the power to veto the motion regardless of whether the applicant has proven that the case meets the standards and qualifies for a transfer of venue.  In addition, this veto power is as ambiguous as the delineations of the standards, but nonetheless has the authority to close loopholes.

  • The Miccosukee Tribe of Florida makes their home along Lake Okeechobee in the Florida Everglades.

Lake Okeechobee was historically the originating point for the overflow for the waters powering the Everglades (Carden, 2004).  Over the years, this flow has been diverted by manmade structures, such as the construction of drainage and canal systems, which has resulted in the areas we now recognize as the Everglades National Park and Water Conservation areas (WCAs) (Carden, 2004).  These hydrologic modifications have reduced the connectivity of the wetlands, altered flow patterns, and increased phosphorus availability in the WCAs, which has ultimately resulted in a change in the ecological composition of the entire ecosystem within the Everglades (Carden, 2004).  The resulting eutrophication due to agricultural, urban, and residential runoff containing high levels of phosphorus has caused a tremendous shift in floral and faunal communities (Carden, 2004).  The S-9 pumping station in Broward County belonging to the South Florida Water Management District’s (SFWMD) has been labeled as a massive contributor to the problem of eutrophication occurring within this ecosystem (Carden, 2004).  Using the EPAs (Environmental Protection Agency) Clean Water Act to substantiate their complaints, the Miccosukee tribe filed suit under South Florida Water Management District v. Miccosukee Tribe of Indians and won an injunction mandating that the SFWMD must acquire National Pollution Discharge Elimination System (NPDES) permits before depositing polluted water into the greater Everglades ecosystem due to the significant harm this pollution is causing the ecosystem of the Miccosukee homelands (Carden, 2004).  This tribe also used existing statutes to uphold and define the parameters of tribal sovereignty, including their ability to manage and regulate their lands (Kurak, 2000).

The consistent use of existing litigation to further the objectives of private citizens is a major concern of those looking to preserve the few natural areas like the Everglades that our planet still has.  This is also apparent in the similar suit of Oposa v. Factoran, which petitioned the courts to stop the destruction of the rain forests in the Philippines (Kravchenko & Bonine, 2008, p.79).

  • The World Bank (TWB) Inspection Panel is designed to give those that may be negatively affected by World Bank projects the opportunity to voice their concerns directly to the Board of Directors (TWB, 2003).

The purpose of the World Bank Inspection Panel is to ensure that projects funded by TWB are and remain in compliance with the mission and values exemplified by the organization (Kravchenko & Bonine, 2008, p.465).  Since the mission and values of TWB are primarily humanitarian pursuits, it is imperative that, in the course of constructing projects intended to help those in need, the project is not actually causing the people within the community harm.  In order to request an inquiry by The World Bank Inspection Panel, the complainant should have previously voiced their concerns to local World Bank staff members and can officially do so through their local World Bank branch office (TWB, 2003).  The complainant should be able to present their concerns prior to financing approval for the project, but it submissions must be presented before the finances are closed or more than 95% of the funding has been dispersed (TWB, 2003).  Once a complaint is received, the management will examine it and make recommendations to the board regarding what actions are necessary and if an investigation is called for.  The management has up to six weeks to make their recommendations.

  • A political question is one that pertains to the executive or legislative branches of government (Kravchenko & Bonine, 2008, p.81).

The Oposa v. Factoran decision in the Philippines presented a political question regarding the State’s right to preserve the natural environment, indigenous cultures, and refuse to allow the destruction of their ecosystems in pursuit of financial gain (Kravchenko & Bonine, 2008, p.79).  This situation presented the question of whether the government has a duty to protect the land or the rights of the people to reap the harvest of the land for profit.  The matters raised in this suit were also deemed to pertain to the rights to a sound environment, the rights of the people to a balanced healthy ecology, environmental genocide, and man’s inalienable right to self-preservation and self-perpetuation, just as it is averred that these same rights apply to the natural environment (Kravchenko & Bonine, 2008, p.81).  In this matter, it was the opinion of Justice Feliciano that, while the right to a balanced, healthy ecology is fundamental, this is not actually something specific enough to form a cause of action (Kravchenko & Bonine, 2008, p.69).

Environmental sustainability is being viewed in modern times as a vital, interdisciplinary approach to the formation of policies and programs that promote reduction of “the risks to our national security, improving our economic efficiency and productivity, enhancing our health and communities, creating jobs, improving the lives of the poorest among us, and fostering greater human well-being in other countries” (Light, 2012).  Laws and regulations, such as national Energy Star ordinances, have been passed on a global level to ensure manufacturers and purveyors of the latest technology do not turn our planet into a toxic mess with all the chemical waste that is produced in the process.  This contradicts the supposition of Factoran that there are no legal precedents allowing them to be prosecuted for the rapid deforestation of the Philippines and their surrounding islands (Kravchenko & Bonine, 2008, p.80).

Justice Davide was more accurate in his interpretation that it is the responsibility to preserve our natural environment so that it is healthy and available for future generations.  However, the position of Justice Davide is one that has been proven to require statutory legislation in order top maintain the indicated positions (Kravchenko & Bonine, 2008, p.70).  The views of Justice Davide are also better for the environment, the legal system, and democracy because it preserves an inhabitable world for future generations and ensures humanity will have a future.

  • Although the European Convention on Human Rights does not specifically delineate any rights to a safe, clean, or healthy environment, Articles 2, 3, and 8 discuss “Right to Life”, “Prohibition of Torture”, and “Right to Respect for Private and Family Life”, respectively and these articles can be used to infer such rights.

The specifications in Article 2, ¶2, §(a) “in defence of any person from unlawful violence” imply the right to safety and the right to ensure the safety of one’s family.  The simplicity of Article 3 stating “No one shall be subjected to torture or to inhuman or degrading treatment or punishment” supports this supposition and allows for a strong argument in favor of human rights on the grounds that it is supported by this Convention.  Article 8, ¶2 additionally supports the argument for a healthy environment with the stipulation that legal interference in familial affairs is allowable if it is in the interest of ensuring “…the protection of health or morals, or for the protection of the rights and freedoms of others”.  Article 13 also provides a strong rationale for the postulation of such an argument, stating:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.

The thematic recurrence of such statements throughout the Convention allows for the construct of strong arguments in favor of the addition of a definitive article documenting specific substantive rights to a safe, clean, healthy environment under the European Convention of Human Rights.

While granting the right to “Freedom of Expression’, Article 10, ¶2 also states:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

This provision clearly adds strong boundaries regarding the limits of access to information and what rights the government can declare in preventing the release of sensitive information regarding their practices and procedures.  This also binds the ability of citizens to access and release information that may alter the status quo or shift hierarchical powers.

 

 

Part II

  • Law No. 364: Under Special Law 364, the Nicaraguan courts rendered a judgment in the amount of $97 million against the Dole Foods company in the case Sanchez Osorio, et al., v. Dole Food Company, et al., Case No.: 07-22693-CIV-HUCK (Kravchenko & Bonine, 2008, p.432). In this case, the Dole Foods Company was represented by Gibson, Dunn & Crutcher LLP when the 150 Nicaraguan plaintiffs filed an action to enforce a $97 million Nicaraguan judgment under the Florida Uniform Out-of-country Foreign Money-Judgments Recognition Act (Florida Recognition Act). FLA. STAT. §§ 55.601-55.607 (2009).  The plaintiffs claimed to have been exposed to the chemical compound dibromochloropropane (DBCP), which is an agricultural pesticide that was banned in the United States after it was linked to sterility in factory workers in 1977 and Nicaragua banned DBCP in 1993.
  • Aarhus Convention: The formal name is the Convention on Access to Information, Public Participation in Decision-making, and Access to Jusitce in Environmental Matters and was negotiated in Aarhus, Denmark, on 25 June 1998 (Kravchenko & Bonine, 2008, p.5). This document was meant to supplement the Stockholm Declaration of 1974.
  • Rio Declaration: Meant to reaffirm the Stockholm Declaration of 1974, the Rio Declaration on Environment & Development was drafted and listed 27 principles that were meant to ensure that international agreements representing the interests of all to protect the integrity of the global environmental and developmental system and establish a new, equitable global partnership through the creation of innovative levels of cooperation among States, key sectors of societies and people (Kravchenko & Bonine, 2008, p.400).
  • Sinosure:
  • “3rd generation” of rights: Third-generation human rights focus essentially on fraternity or rights of solidarity and covers group and collective rights such as the right to self-determination, to economic and social development, and to participate in the common heritage of mankind (Kravchenko & Bonine, 2008, p.19).
  • ILO Convention 169: Convention on Indigenous & Tribal Peoples recognizes that the cultures and identities of indigenous and tribal people emanate from an integral part of their lives and that their way of life often differs from that of the central population (Kravchenko & Bonine, 2008, p.164). Theses differences are to be respected through the recognition of, among other things, their own customs and institutions, languages and beliefs.
  • Margin of Appreciation: Margin of appreciation refers to the power of a Contracting State in assessing the factual circumstances, and in applying the provisions envisaged in international human rights instruments (Kravchenko & Bonine, 2008, p.37). Margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions (Kravchenko & Bonine, 2008, p.37).
  • Rachel Carson: Exposed the dangers of pesticides & introduces the notion of “right to know” in that she insisted that citizens had the right to be secure in their homes against the intrusion of poisons applied by others (Kravchenko & Bonine, 2008, p.3). N. Doc A/Conf.48/14, 11 I.L.M. 1416 (1972) The African Charter on Human People’s Rights, adopted in 1981 states “…all people have the right to a generally satisfactory environment favourable for their development” in Article 24 (Kravchenko & Bonine, 2008, p.4).
  • ESD: Ecologically Sustainable Developmentis a pattern of resource usage that aims to meet human needs while preserving the environment so that those needs can be met not only in the present, but also for all future generations (Kravchenko & Bonine, 2008, p.588). ESD brings together concern for the carrying capacity of natural systems with the social challenges facing the larger human population (Kravchenko & Bonine, 2008, p.588).
  • Alien Tort Claims Act: The Alien Tort Claims Act (ATCA) of 1789 grants jurisdiction to US Federal Courts over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” (Kravchenko & Bonine, 2008, p.409).
  • ELAW: Environmental Law Alliance Worldwide (ELAW) is a global network of human rights and environmental advocates who use law and science to advance environmental justice (Kravchenko & Bonine, 2008, p.19).
  • Tuvala:
  • Equator Principles: The Equator Principles (EPs) are a credit risk management framework for determining, assessing and managing environmental and social risk in project finance transactions (Kravchenko & Bonine, 2008, p.376).
  • Cartagena Protocol on Biosafety: is an international agreement which aims to ensure the safe handling, transport and use of living modified organisms (LMOs) resulting from modern biotechnology that may have adverse effects on biological diversity, taking also into account risks to human health and was adopted on 29 January 2000 and entered into force on 11 September 2003 (Kravchenko & Bonine, 2008, pp.170, 264).
  • Basel Convention: The Basel Convention On The Control Of Transboundary Movements Of Hazardous Wastes And Their Disposal (1989) seeks to protect human health and the environment against the adverse effects which may result from the generation, transboundary movement, and management of hazardous and other wastes through strict control measures (Kravchenko & Bonine, 2008, p.314). Further objectives include reducing transboundary movement of wastes to a minimum consistent with their environmentally sound and efficient management, and controlling any permitted transboundary movement under the terms of the Convention; minimizing the amount of hazardous wastes generated and ensuring their environmentally sound management; and assisting developing countries in environmentally sound management of the hazardous and other wastes they generate (Kravchenko & Bonine, 2008, p.314).
  • Shuar: FIPSE is the representative organization of the Shuar people of Ecuador, located in Pastaza and Morona-Santiago provinces (Kravchenko & Bonine, 2008, p.166). The Shuar work closely with the Achuar, a related indigenous group) in a strategy of resistance to all oil development on their traditional lands. FIPSE remains unconditionally opposed to oil exploitation (Kravchenko & Bonine, 2008, p.166).
  • UN Global Compact: Heralding itself as “the world’s largest voluntary corporate responsibility initiative”, the UN Global Compact is a strategic policy initiative for businesses that are committed to aligning their operations and strategies with ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption. By doing so, business, as a primary driver of globalization, can help ensure that markets, commerce, technology and finance advance in ways that benefit economies and societies everywhere (Kravchenko & Bonine, 2008, p.369).
  • DBCP: dibromochloropropane (DBCP), which is an agricultural pesticide that was banned in the United States after it was linked to sterility in factory workers in 1977 and Nicaragua banned DBCP in 1993.
  • S-9: The S-9 pumping station in Broward County belonging to the South Florida Water Management District’s (SFWMD) has been labeled as a massive contributor to the problem of eutrophication occurring within this ecosystem (Carden, 2004).
  • LEED Green Associate: The LEED Green Associate credential is intended for professionals who want to demonstrate green building expertise in non-technical fields of practice. The Green Building Certification Institute (GBCI) has created the LEED Green Associate credential, which denotes basic knowledge of green design, construction and operations (Kravchenko & Bonine, 2008, p.224).

References

Carden, K. (2004). South Florida water management District V: Miccosukee Tribe of Indians. Harvard Environmental Law Review, 28, pp.549-560.

Kravchenko, S. & Bonine, J.E. (2008). Human rights and the environment: Case, law, and policy. North Carolina: Carolina Academic Press

Kurak, A.M. (2000). Florida paraplegic, Association v. Miccosukee Tribe of Indians of Florida: Balancing competing interests. Florida Paraplegic, Association v. Miccosukee Tribe, Stetson Law Review, 30, pp.361-390.

Light A.R. (2012).  LL.M. in environmental stability. St. Thomas University School of Law, Miami Gardens, FL

Osorio v. Dole Food Co., No. 07-22693-CIV, 2009 WL 48189, 2009 U.S. Dist. LEXIS 713 (S.D. Fla. Jan. 5, 2009).

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