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Speaker Abstracts

IGU Biennial Symposium 2021

Human Rights and the Environment

Graphic image for Institute for Global Understanding 2021 Symposium

Thursday, March 25, 5:00-6:00 p.m.
Distinguished Lecturer

Root and Branch: Climate Migration, Racial Crises, and the History and Future of Climate Justice

Maxine Burkett
Professor of Law at the William S. Richardson School of Law and a Global Fellow at the Woodrow Wilson International Center for Scholars

The disproportionate burdens of climate change borne by the Global South are numerous and increasingly well-documented. While the effect of the climate crisis in the South is starting to receive its due coverage in a current moment of heightened awareness, the centuries long relationship between the two also deserves deeper exploration, particularly to ensure that our solutions seek to grasp at the roots of the crisis while it prunes the branches. Indeed, the climate crisis and racial hierarchy have long been inextricably intertwined, explaining in large part the uneven share in cause and consequence of the North and South respectively. With a comprehensive review of the challenges of climate-induced migration, Prof. Burkett will provide a case study in the gaps of international law and illuminate transformative and just approaches to twin crises.

Friday, March 26, 9:00-11:00 a.m.
Opening Plenary Panel

New Directions in Human Rights and the Environment

Moderator: Prof. James R. May, Delaware Law School

Rights-Based Approaches to Environmental Protection: Implementation, Translations, and Future Research

Joshua C. Gellers, Ph.D.
University of North Florida

For over four decades, the world has witnessed a dramatic rise in the number of legal instruments advancing a rights-based approach to environmental protection. These ‘environmental rights’ seek to overcome the impotence of environmental law and regulatory schemes by invoking the authority of fundamental rights, human dignity, and Indigenous cosmologies. But do environmental rights make a difference? If so, under what circumstances? This presentation seeks to respond to these questions by providing an overview of extant knowledge about the implementation of human and nonhuman rights pertaining to the natural environment. In particular, I review existing literature on the effects of environmental rights and highlight the conceptual and practical issues associated with evaluating their efficacy. The talk also examines how anthropocentric and non-anthropocentric environmental rights have been translated into different supranational, national, and subnational contexts. I close by outlining environmental, legal, political, and social outcomes worthy of further study.

Access to Safe Drinking Water and Sanitation under the European Convention on Human Rights

Marijana Mladenov, Ph.D.
Faculty of Law for Commerce and Judiciary, University Business Academy in Novi Sad (Serbia)

Although access to drinking water and sanitation is widely recognized as a human right, the European Convention on Human Rights (ECHR) does not contain an explicit right to water and sanitation. However, the European Court of Human Rights (ECtHR) has developed case law and established minimum standards relating to the right to safe drinking water and sanitation using two interpretation techniques: the “living instrument” doctrine and the “practical and effective” doctrine. This presentation analyzes recent jurisprudence of the ECtHR to address whether the Court has recognized this right and, if so, in what manner. It describes the possibilities and limits to achieving access to drinking water and sanitation within the scope of Article 3 and Article 8 of the ECHR. Special attention is devoted to the latest developments on this right through the lens of the judgment in Hudorovic v. Slovenia. This case evaluates the ECtHR’s assessment of the right to water and highlights the positive obligations of the State to provide adequate access to drinking water and sanitation for Roma communities living in informal settlements. The presentation locates this case within a larger debate regarding the right to safe water and proper sanitation across European human rights law in compliance with the revised Drinking Water Directive. Furthermore, the presentation addresses areas for further research and describes certain problems regarding the human right to water and sanitation that need to be resolved.

COVID-19 in Latin America: Greening the Jurisprudence of the Inter-American Human Rights System through Indigenous Claims

Maria Antonia Tigre, LL.M (S.J.D. candidate)
Elisabeth Haub School of Law at Pace University (U.S.)

Latin America is a region that is plagued by socioeconomic inequality issues, a context that has only worsened during the COVID-19 pandemic. Faced with challenges related to the rule of law and access to justice, regional plaintiffs have sought the Inter-American Human Rights system as an arbiter for human rights abuses. Recent jurisprudence of both the Court and the Commission have broadened the potential scope of protected rights by building on the interdependence of environmental human rights in indigenous peoples’ cases. The pandemic has provided a valuable foundation for the Inter-American Human Rights to address emerging legal topics on human rights and the environment. This talk will address this evolving jurisprudence, using recent cases that have been brought to the attention of the Commission as case studies on the development of this relationship.

Protecting the Environment in Latin America: The Role of Women Environmental Defenders

Lina Munoz-Avila, Ph.D.
Universidad del Rosario (Colombia)

Latin America has the highest number of environmental conflicts and in which is most dangerous to defend the environment and the territories. Environmental conflicts regarding climate change, water quality, and rainforest protection impact women disproportionately and differentially. The purpose of this presentation is to share ideas about the situation of women environmental defenders in Latin America and outline a protection strategy to prevent and respond to the violence exerted against these public defenders in environmental conflicts. It advocates for a stronger gender-based protection framework to effectively guarantee their rights. It proposes regional studies and policies that could provide a safe scenario for women environmental defenders and their families to work free from risks and threats, based on the guidelines of the Escazú Agreement on Access to Information, Public Participation, and Justice in Environmental Matters in Latin America and the Caribbean.

Friday, March 26, 12:00-1:45 p.m.
Afternoon Plenary Panel: Interdisciplinary Perspectives on Environmental Justice

Moderator: Prof. Randall S. Abate, Monmouth University

Getting Environmental Justice “Right”

Deepa Badrinarayana, S.J.D.
Chapman University School of Law (U.S.)

Environmental injustice—where a discreet community, defined by race (or economic status), bears a disproportionate burden of environmental harm and enjoys fewer benefits of environmental protection under existing laws—is a well-documented problem. That ought to make it subject to scrutiny under the Fourteenth Amendment. Yet, to date environmental justice has not been scrutinized under the Equal Protection Clause, primarily because of the Supreme Court’s interpretation, limiting judicial scrutiny under the Equal Protection Clause to intentional discrimination. Ensuring equal protection of environmental laws is therefore almost exclusively a function of an Executive Order, requiring federal agencies to take environmental justice into consideration when enforcing environmental laws. For a variety of reasons, it is unlikely that the judiciary or Congress will reconsider the intent requirement to the Equal Protection Clause.

This presentation proposes a first step to reinforce the normative importance of a constitutional right to environmental protection by focusing on the Due Process Clause of the Fourteenth Amendment. Both current global litigation and the Juliana case in the United States illustrate the growing traction for articulating a right to environmental protection as an independent right, or at least as an integral component of a constitutional right to life. This presentation will consider the merits and limits of such an approach for environmental justice plaintiffs in the United States.

Mayah’s Lot: Using Storytelling to Build the Next Generation of Environmental Leaders

Prof. Rebecca Bratspies
CUNY School of Law (U.S.)

Photo image of book cover for Mayah's LotEnvironmental Justice, I bet you don’t even know what that means … I had no idea that it actually affects every one of us. That is, until it came to my home.

So begins Mayah’s Lot, Book 1 of the Environmental Justice Chronicles. Mayah’s Lot tells the story of a young girl who organizes her urban neighbors to block the siting of an industrial waste storage facility in their already overburdened community. The fictional town of Forestville could be anywhere that struggles with environmental injustice, it is an area overburdened with polluting industry, while not accruing much of the wealth those activities generate. Since Mayah’s Lot was first published in 2012, the Environmental Justice Chronicles has grown to include Bina’s Plant, and Troops March (currently under production.)

Created in partnership with artist Charlie LaGreca and NYC students, The Environmental Justice Chronicles helps young city dwellers build a new environmentalism that is not only about protecting wilderness but also about protecting their own neighborhoods. These young people represent the future of our ever-more-urban world. If they do not see environmental protection as their fight, it spells disaster for us all.

This talk describes how the Environmental Justice Chronicles began. It chronicles how Mayah’s Lot has been used to teach basic civics, to build environmental justice awareness, and to cultivate a new generation of environmental leaders. Mayah’s Lot stands alone as a story, but it is also a teaching tool that introduces readers to street science, basic administrative procedures, and effective community organizing. Readers learn alongside Mayah. From its start as a comic book, Mayah’s Lot has grown into a video and curriculum that has engaged students in classrooms across New York City, the United States, and beyond. Using non-traditional tools and project learning, the book opens conversations about what kind of a society students want to have—asking them to notice how environmental benefits and burdens are currently distributed across populations, and then to work for a fairer, greener world.

Promoting Environmental and Human Rights Protections in an International Investment Treaty Regime

Begaiym Esenkulova, S.J.D.
American University of Central Asia (Kyrgyz Republic)

This presentation will focus on how to align investment protection with host states’ ability to advance environmental and human rights protections in international investment agreements (IIAs). At present, there are over 3000 IIAs worldwide. Most of them are “old-generation,” which means that they provide rights to investors without counter balancing such rights with investor obligations to comply with host states’ sustainable development goals. This situation is alarming because failure to integrate environmental and human rights protections in IIAs may bring about a number of various negative consequences for host states, including adverse environmental and human rights impacts. This presentation will address potential reform options designed to promote environmental and human rights protections in an international investment treaty regime.

“Just Sustainability”: A Paradigm Shift in Environmental Protection

Stellina Jolly, Ph.D.
South Asian University (India)

Despite the enactment of extensive legislation, regulations, and administrative measures, the environmental crisis is deepening in India. India’s environmental crisis is also characterized by the disproportionate impact faced by marginalized and vulnerable communities striking at the very root of ecological justice. The legal framework on environmental protection is founded on the expanded notion of the right to life founded on the paradigm of sustainable development.

In the Indian context, the principle of sustainable development has evolved to occupy centrality in environmental jurisprudence. The courts have applied the balancing doctrine and proportionality principle while implementing sustainable development. However, the jurisprudence has been criticized as it is surrounded by indeterminacy and implementation challenges. In the absence of a fair understanding of the term, the policymakers and judges find it hard to interpret and implement it in specific cases. While balancing the three pillars of sustainable development – environment, economic, and social – the courts have often employed either environmental or ecological aspects; thus, almost neglecting its social dimension. However, in the case of State of Meghalaya v. All Dimsasa Students Union, the Court has provided a new approach to achieve environmental justice by innovatively interpreting sustainable development as requiring “just sustainability.” This presentation attempts to critique the principle of sustainable development and analyze its surrounding challenges through the prism of Indian environmental jurisprudence. It further explores the contours of “just sustainability” and affirms the need to integrate environmental justice with sustainable development.

Bamboo for Good: Advancing Bamboo Resources in Service of Critical Needs

Jonathan M. Scherch, Ph.D.
Pacific Bamboo Resources (U.S.)

The bamboo plant has been an important feature of cultural and socio-economic development throughout the world for thousands of years. Moreover, myriad uses of bamboo have provided sustainable sources of food and fuel, tools and building materials, housing and habitat, furniture, artwork and more. Recent attention has focused on bamboo’s usefulness in response to impacts of climate change, disaster preparedness and community resilience, wildlife conservation, and overall livelihood and social welfare improvements. Leveraging the benefits of this powerful plant, Pacific Bamboo Resources (PBR) implements social work-informed programs of Bamboo for Good (B4G), representing a unique consortium of international partnerships among public and private institutions and communities to mobilize bamboo resources for social, economic and environmental good. This presentation will briefly introduce the mission of PBR and highlight examples of B4G programs in East Africa portraying practical, collaborative methods towards realizing shared sustainability objectives.

Saturday, March 27, 9:30-11:00 a.m.
Global Perspectives on Climate and Energy Justice Roundtable

Moderator: Prof. Randall S. Abate, Monmouth University

Litigating the Right to be Cold: Obstacles for Climate Justice in Canadian Courts

Patricia Galvao Ferriera, S.J.D.
University of Windsor Faculty of Law (Canada)

Inspired by the wave of rights-based climate litigation in national courts that followed pioneer successful lawsuits like Urgenda v. The Netherlands and Leghari v. Pakistan, Canadian youth groups and Indigenous peoples have filed at least four rights-based lawsuits before their national Courts in the last few years. Indigenous peoples and future generations of Canadians are bearing – or will bear – the brunt of adverse climate impacts in the country, which is warming twice as fast as the rest of the world. Climate justice is as pressing and existential for these Canadians as for inhabitants of Small Island Developing States.

The Canadian rights-based climate lawsuits are substantiated on legal grounds that resemble their forerunners. Plaintiffs are asking Courts to declare Canada’s climate policies as inadequate in light of climate science and international climate law, and in violation of constitutionally recognized rights to life and to equality. Yet rights-based environmental litigation remains rare in Canada. Asking courts to adjudicate the adequacy of national or sub-national law and policies to address global environmental problems like climate change is largely uncharted waters. In three of the four lawsuits, Canadian courts have declined to analyze the merits of the cases, based on admissibility grounds. Courts have, however, signaled that they would consider the rights-based challenges justiciable if framed in the proper way. This presentation breaks down the important components of the Canadian courts’ decisions, considers potential future obstacles for these cases, and highlights how success in a rights-based climate lawsuit may revolutionize environmental litigation in Canada more generally.

People v. Arctic Oil and its Discontents: The Norwegian Paradox in Global Climate and Energy Justice</h3

Esmeralda Colombo, LL.M. (Ph.D. candidate)
University of Bergen (Norway)

Under the Norwegian paradox, Norway is a climate leader in international fora, and a petrostate at home, safely keeping its status as the seventh largest exporter of emissions in the world. Societal unease with the Norwegian paradox reached its peak in People v Arctic Oil, the first and only climate change case ever filed in Norway. In this major lawsuit, which was filed in 2016, Greenpeace Nordic and Nature &Youth challenged the expansion of the country’s petroleum industry to the southern and southern eastern areas of the Barents Sea, in the Norwegian Arctic. The expansion received the unanimous support of the Norwegian Parliament on June 10, 2016, 10 days before Norway ratified the Paris Agreement. With People v Arctic Oil, the plaintiffs argue that the issuance of petroleum licenses should be annulled based on: (1) Article 112 of the Norwegian Constitution, one of the strongest constitutional provisions worldwide on the right to a healthy environment, including for future generations; (2) the Paris Agreement; (3) the European Convention on Human Rights; and (4) domestic law provisions, notably on environmental impact assessments.

In the aftermath of the final decision in People v Arctic Oil, to be rendered by Norway’s Supreme Court in January 2021, the presentation will set the case within the wider horizon of global climate and energy justice by asking three questions: (1) How does the case compare to similar litigation worldwide? (2) What socio-legal conditions factored in and affected the Supreme Court’s final decision? (3) What are the decision’s repercussions for climate and energy justice, particularly in terms of intergenerational and intragenerational equity? The presentation aims to further advance discussion on climate and energy justice through social movement pressure, litigation, and ambitious regulation.

Green New Deal Policy of South Korea: Policy Innovation for a Sustainability Transition

Jae-Hyup Lee, J.D., Ph.D.
Seoul National University School of Law (South Korea)

This presentation will discuss the “Green New Deal” (2020) policy of South Korea and its subsequent implementing legislations. Originally proposed as a post-COVID-19 stimulus plan, the Green New Deal is a sustainability-centered strategy for building a low-carbon and climate-neutral economy. The Green New Deal sets out eight targets to be accomplished under three strategic areas: green urban development, low-carbon decentralized energy, and innovative green industry. The Deal also takes measures to protect the people and sectors at a higher risk of being left behind in the process of the economic transition. It is an upgraded version of the “Green Growth” (2009) national policy, with more emphasis on sustainability in addition to the growth aspect. This presentation will examine the accomplishments and challenges during the Green Growth policy era and argue why the transition to the new Green New Deal is necessary for a sustainability transition.

The Search for Energy Justice and Sustainable Development in the Global South

Damilola Olawuyi, Ph.D.
Hamad Bin Khalifa University Law School (Qatar)

Despite the conceptualization and promotion of the energy justice paradigm globally, inequity in the distribution of the benefits and burdens of energy resources remains a major threat to sustainable development in the Global South. The need to address inadequate access to energy, or energy poverty, has been given renewed impetus by the United Nations’ Sustainable Energy for All and the associated Sustainable Development Goal 7 which encourage countries to develop projects and initiatives aimed at providing access to energy to the over 1 billion people who do not have access to reliable energy. The problem of climate change, as well as the quest for a ‘just’ energy transition also add new layers to the debate on energy justice. This presentation offers critical perspectives on the search for energy justice in the Global South. It examines the multi-dimensional and intersectional nature of designing responsive legal frameworks that can address rising energy poverty levels in the Global South.