Legal Reform on Rock Mining Governance: the Dual Liability Model For Protecting Environmental Rights in Palu–Donggala

The relationship between environmental and human rights is very significant. On this basis, humans shall have the right to claim to live in a healthy environment. In China, the study of environmental rights began in the 1980’s. After more than thirty years of discussions on environmental rights, there are a series of environmental rights theories in China. However, scholars have not formed a consensus on some fundamental theories of environmental rights. Moreover, some experts consider that environmental rights include substantive environmental rights and procedural environmental rights, whereas others argue that environmental rights only include substantive environmental rights. Furthermore, the nexus and difference between the right to environment and environmental rights are not clear. “Environmental rights” are treated as a broad concept, its scope includes all rights which are related to the environment. They certainly do not only include substantive, but also procedural environmental rights. Even though the introduction of substantive environmental rights has faced both legislative and practical difficulties, the topic has become a central issue in Chinese academic research.

Objective:The author seeks to understand the content and legal guarantees of the right to sustainable, healthy and favorable environment in the jurisprudence of the European Court of Human Rights. The researcher seeks to list the case law of the ECtHR corresponding to environmental issues in order to define concrete aspects related to responsibility of the States for the climate change and global warming. The author analyzes new legal trends on the protection of the rights of individuals and groups to complain for violations of their rights to a healthy and favorable environment in the light of the European Convention on Human Rights. The article is focused on positive state obligations on a healthy and sustainable environment under the Convention provisions, Russian experience in eco-cases, admissibility criteria for complaints to the European Court of Human Rights in “environmental cases”. The writer gives an overview of the ECtHR’s legal positions on the right to a healthy and favorable (i.e. prosperous, clean, safe, quiet, calm, quality) environment by type of its pollution. The author considers the importance of facilitating the right to healthy environment according to the UN Sustainable Development Goals.Methodology: The research uses general scientific and special cognitive techniques wherein legal analysis and synthesis, systemic, formal-legal, comparative-legal, historical-legal and dialectical methods are applied. The author applied a case study method to select the most recent and pilot cases of the ECtHR practice.Results: The author founds out that despite the fact of a non-exhaustive list of the legal positions of the ECtHR concerning the environment effect on human life and health, there is a certain trend in Council of Europe towards an extended interpretation of the human right to healthy ecological situation responding to new challenges to the realization that right, such as, the decarbonization of industrial processes, right to light, right to fresh air, clean water and clean atmosphere, etc. The study concludes with an idea that right to sustainable, healthy and favorable right is a collective right. From the practical perspective, potentially group of individuals should complain to the international judicial institutions to the violation of this right. The importance of the protection of that right is increasing within the technological progress. The right to healthy environment imposes to the European States a legal obligation to ensure right to life, prohibition of torture, right to privacy, right to a fair trial, right to an effective remedy and prohibition of discrimination. The researcher also point out that cases of environmental rights violations are complicated in terms of preparing a complaint and processing by the ECtHR. Due to this fact, it is hard to do so with regard to the causal link between the acts (omission) of state agencies, the violation of environmental rights and the consequences that occurred. It is not clear from the text of the Convention which article directly should be applied.Contributions: Following a review of the content, the author raised possible problems, strategies, suggestions and guidelines for the protection of the right to sustainable and healthy environment. The author concluded that near future new categories of legal cases related to the state responsibility for global warming and climate change will appear in international and national judicial system. The author encourages the complement to the international legal regulation of the protection of the right to healthy, sustainable and favorable ecology on universal and regional level.

Environmental human rights violations have occurred in almost all levels of society. These violations are considered to threaten Indonesian human civilization. In turn, the violated economic, social, and cultural rights, as well as civil and political rights, will be fulfilled and resolved. Human rights to a good, healthy, and balanced environment have not been implemented in environmental management in Indonesia. In relation to the problem of environmental damage, it is important to study human rights from a human rights perspective. The aim is to explain the definition of human rights and environmental rights, how human rights are regulated in Indonesian law and how human rights are considered as rights to a good and healthy environment. The results of the study explain two things. First, humans are part of the ecosystem, where they have a strong relationship with their environment. Given to them by God as humans, the right to a healthy environment is a basic human right. Second, the right to a good and healthy environment has become a norm throughout the world and in the region. Third, although there have been resolutions, covenants, and regulations of the Universal Declaration of Human Rights at the national level, the right to a good and healthy environment is still poorly respected at both the global and national levels. Developed countries contribute significantly to global warming, climate change, and environmental degradation globally, and they also make significant contributions nationally.

This study outlines the international legal regime on environmental protection and then examines the link between the environment and human rights by reference to the applicaion of human rights law as a legal remedy for environmental issue. Several decades ago, Public International Law not concerned with environmental protecion. The Stockholm conference of 1972 and subsequent international instruments have enriched the international community on the subject. Undoubtedly environmental rights are self executing and they need positive State intervention for their fulfillment. The human fights both procedural and substantive human rights, found in the international Bill of Rights are being applied in relation to environmental issues. The procedural rights must be distinguished from substantive rights recognized in international human rights instruments such as the right to life, the right to health or the right to decent standard of living. The invocatin of substantive human rights in relation to environmental issues has become popular at the national level. The efforts made by Sri Lanka and several South Asian countries are of considerable value. The right to a healthy environment on the other hand denotes the identification of a separate indepedent human right not dependent on existing human rights in the incorporation of a human right to healthy environment into the fundamental rights chapter of our Constitution.

Influenced by developments in the international environmental rights law, most African countries now incorporate in their Constitutions or other major legal documents environmental rights for their citizens. The 1995 Federal Constitution of Ethiopia, its environmental policy, and all subsequent legislation also incorporate environmental rights that are in the major international environmental law conventions. These rights include the right to a clean and healthy environment, the right to access justice, as well as the right to information and public participation. However, the environmental rights that are included in the country’s Constitution, policies and laws are simply rhetorical. For example, in Addis Ababa, the country’s capital, residents suffer from such horrendous odour oozing out of the putrefaction of the environment. Consequently, children and even adults are affected by various diseases such as respiratory and skin infections. Some residents even abandon their homes, not being able to resist the pollution of their environment. The government’s lack of human resource capacity and appropriate technology to promote a healthy and safe environment; its preference of economic growth over environmental protection; environmental corruption; and poor responsiveness of the public, the policy makers, the executive, as well as the judicial organs such as the police and the court to environmental rights, are among the major causes of poor implementation. The article examines how environmental rights could be given due attention as an extension of basic human rights and as a tool for sustainable economic development. Keywords : Environmental rights, theory, practice, factors for poor enforcement, Ethiopia.

How to assess the issue of indigenous land rights in the face of man-m⁠a⁠d⁠e climate change and Amazon fires? How to classify the EU free trade agreement „Mercosur“ and relevant climate, environmental and indigenous rights? What are legal opportunities for indigenous people(s) on the international, inter-American and EU level, to prevent the loss of land and forests, and to protect themselves from climate change? On the basis of indigenous land and environmental rights in Brazil and reactions to the Amazon fires, environmental regulations of the "Mercosur Pact" as well as concerned human and indigenous rights are discussed. Further, this article deals with relevant inter-American law (individual indigenous land rights) and international law (collective land rights). Environmental and climate law provide legal and political options for indigenous people(s), for instance in Brasil. Negative impacts of climate actions on indigenous peoples, the competition between environmental protection areas and indigenous territories, the inclusion of indigenous knowledge in sustainable environmental protection and the allocation of Global Public Goods are discussed. There are various interactions between climate and biodiversity protection, human rights, indigenous peoples rights, and free trade between the EU and South America. While protecting forests as a carbon sink, negative environmental or social consequences must be avoided. Like trade agreements, environmental standards for the protection of the Brazilian Amazon rain forest should be enforceable. To reduce deforestation and to confine the effects of climate change, indigenous peoples rights have to be strengthened. The free, prior, and informed consent of indigenous peoples to projects that may affect their territories is essential. It requires effective, coordinated solutions to protect human rights and indigenous land rights, and it needs a sustainable preservation of climate and forests - nationally and internationally. A collapse of the Amazon forest ecosystem would have global climate effects. In Brazil, alternatives to deforestation and destruction are: strengthening the rule of law and agro-ecology, and to defend indigenous territories.

Contents: Volume I Acknowledgements Introduction Dinah L. Shelton PART I THEORETICAL APPROACHES 1. Joseph L. Sax (1990), `The Search for Environmental Rights' 2. James W. Nickel (1993), `The Human Right to a Safe Environment: Philosophical Perspectives on Its Scope and Justification' 3. Gunther Handl (1992), `Human Rights and Protection of the Environment: A Mildly `Revisionist' View' 4. Sumudu Atapattu (2002), `The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment Under International Law' 5. Alan Boyle (2007), `Human Rights or Environmental Rights? A Reassessment' 6. Roda Mushkat (2009), `Contextualizing Environmental Human Rights: A Relativist Perspective' 7. Hari M. Osofsky (2005), `Learning from Environmental Justice: A New Model for International Environmental Rights' 8. Richard P. Hiskes (2005), `The Right to a Green Future: Human Rights, Environmentalism, and Intergenerational Justice' 9. James R. May (2006), `Constituting Fundamental Environmental Rights Worldwide' 10. Prudence E. Taylor (1998), `From Environmental to Ecological Human Rights: A New Dynamic in International Law?' PART II SPECIFIC ISSUES AND PROBLEMS 11. Malgosia Fitzmaurice (2007), `The Human Right to Water' 12. Paul L. Joffe (2009), `Conscience and Interest: Law, Rights, and Politics in the Struggle to Confront Climate Change and the New Poverty' 13. Marc Limon (2009), `Human Rights and Climate Change: Constructing a Case for Political Action' 14. Cyril Uchenna Gwam (2002), `Adverse Effects of the Illicit Movement and Dumping of Hazardous, Toxic, and Dangerous Wastes and Products on the Enjoyment of Human Rights' 15. Michael N. Schmitt (2000), `Humanitarian Law and the Environment' 16. Christopher Tracy (1994), `The Roots of Influence: Nongovernmental Organizations and the Relationship Between Human Rights and the Environment' 17. Daniel Barstow Magraw and Lauren Baker (2007), `Globalization, Communities and Human Rights: Community-Based Property Rights and Prior Informed Consent' Volume II Acknowledgements An introduction to both volumes by the editor appears in Volume I PART I VULNERABLE POPULATIONS 1. Lawrence Watters (2002), `Indigenous Peoples and the Environment: Convergence from a Nordic Perspective' 2. Cherie Metcalf (2003), `Indigenous Rights and the Environment: Evolving International Law' 3. Rebecca Tsosie (2007), `Indigenous People and Environmental Justice: The Impact of Climate Change' 4. Aurelie Lopez (2007), `The Protection of Environmentally-Displaced Persons in International Law' 5. Karen E. MacDonald (2006), `Sustaining the Environmental Rights of Children: An Exploratory Critique' PART II INTERNATIONAL TEXTS AND JURISPRUDENCE 6. Neil A.F. Popovic (1996), `In Pursuit of Environmental Human Rights: Commentary on the Draft Declaration of Principles on Human Rights and the Environment' 7. John H. Knox (2009), `Linking Human Rights and Climate Change at the United Nations' 8. Dinah Shelton (2010), `Developing Substantive Environmental Rights' 9. Stephen J. Powell (2007), `Should or Must?: Nature of the Obligation of States to Use Trade Instruments for the Advancement of Environmental, Labour, and Other Human Rights' 10. Ole W. Pedersen (2008), `European Environmental Human Rights and Environmental Rights: A Long Time Coming?' 11. Kristof Hectors (2008), `The Chartering of Environmental Protection: Exploring the Boundaries of Environmental Protection as Human Right' 12. Jona Razzaque (2007), `Linking Human Rights, Development, and Environment: Experiences from Litigation in South Asia' 13. Cesare Pitea (2006), `The Non-Compliance Procedure of the Aarhus Convention: Between Environmental and Human Rights Control Mechanisms'

<span lang="EN-GB">The <em>Ad Hoc</em> Human Rights Court was established under Law Number 26 of 2000 as a manifestation of the state’s responsibility to uphold justice for gross human rights violations in Indonesia. However, its effectiveness and judicial independence remain problematic due to the dominance of political interests. This study aims to analyze the legal politics of the <em>Ad Hoc</em> Human Rights Court through three dimensions: <em>Ius Constitutum</em>, <em>Ius Operatum</em>, and <em>Ius Constituendum</em>. The research employs a normative legal method with a juridical approach by examining positive legal norms, legal principles, and political dynamics that influence the court’s implementation. The findings reveal that in the <em>Ius Constitutum</em> dimension, the </span><span lang="IN">establishment mechanism requiring the approval of the House of Representatives (DPR) upon the President’s proposal opens room for political intervention and weakens judicial independence. In the <em>Ius Operatum</em> dimension, the court’s implementation shows low effectiveness due to weak evidentiary procedures, limited application of the command responsibility principle, and strong political interference. Meanwhile, the <em>Ius Constituendum</em> dimension highlights the need for legal and political reforms through regulatory revisions, institutional strengthening, and the creation of an independent mechanism to ensure substantive justice. Therefore, the legal politics of the <em>Ad Hoc</em> Human Rights Court remain elitist and symbolic, necessitating a reorientation to strengthen accountability, judicial independence, and the protection of victims’ rights in cases of gross human rights violations.</span>

This article examines the way in which the organs of the European Human Rights Convention have dealt with cases involving 'the environment' in the absence of any environmental (human) right or rights in the Convention. Some theoretical approaches to 'human rights and the environment' are examined and the possible formulation of an environmental right or rights, their scope and content are discussed as a preliminary to the examination of the way in which the rights actually stated in the Convention could be or have been used to derive some form of environmental human right(s). It is suggested that the willingness or otherwise of the Court (now) to act in some sense to enforce 'environmental human rights' very much implicates the Court's willingness or not to accept a 'judicial control not always restricted to the legality of administrative acts'. The conclusion is that it is unnecessary to 'add' specific environmental human rights to the Convention, and that there can be derived from a Convention that contemplated neither protection of the environment nor of the individual against harm to the environment, substantial legal protection under the Convention against environmental harms.

Abstract: The field of human rights engages rights that are thought to inhere to humanness, commonly categorised as either civil and political or social, economic and cultural. Civil and political rights include the right to vote, assemble and participate, as well as to free speech, religion and legal processes. Socioeconomic and cultural rights include dignity, education, health, food, water, sick leave, family leave, and employment, to name a few. A healthy environment occupies the liminality between. But until fairly recently, the human rights oeuvre largely avoided the question as to whether humans are entitled to a healthy environment. ‘Global Enviromental Constitutionalism’ has changed that. It explores the constitutional engagement, incorporation, adjudication and implementation of environmental rights, duties, responsibilities, procedures, policies and other measures that promote the twin aims of environmental protection and a right to a healthy environment. The constitutions of at least 84 countries now expressly recognise something akin to a right to a healthy environment. Courts in several additional countries have inferred a right to a healthy environment from other established rights, largely to life, dignity or health. Global environmental constitutionalism involves much more than whether to recognise a right to a healthy environment. Scores of countries have also amended or adopted constitutions to grant rights to information, participation, justice, water, sustainable development and a safe climate; to recognise rights of current and future generations, pndigenous peoples, and of nature; to impose (sometimes reciprocal) duties to protect the environment and the climate and engage in environmental assessment; and to promote myriad environmental policies, including sustainability. Environmental constitutionalism shows growth in the areas of climate litigation, rights of nature, procedural rights, application of human dignity under law, water law and sustainability. The task at hand is to explain how a human right to a healthy environment emerged and, ultimately, encouraged and converged with global environmental constitutionalism, and, to explore the extent to which environmental rights are being implemented and are improving environmental and human health outcomes.

<p>During the long and dry season, land fire which cause smog haze pollution, is a common phenomenon in Indonesia. Although the practice of slash and burn cultivation has no longer in existence after the promulgation of the 1974 Law No. 5 on the Village Government which abolished the <em>Marga</em> Government. Nevertheless, that tradition remained continued practiced by the workers hired by the big palm plantation companies and industries when they open the land to start their activities. it is very surprising that the above practice has resurfaced in the midst of a long dry season that is happening in Indonesia, especially in South Sumatra. Smog and haze resulting from land fire create health problems for the people in South Sumatra, especially in the area where smog and haze located. There are legal instruments as the foundation to claim the healthy environmental rights, the Indonesian Constitution of 1945, The 1999 Law No. 39 on Human Rights and the 2009 Law No. 32 on the Environmental Protection of and the Environmental Management. Herein, the smog and haze pollution are seen to violate the people’s human rights. Unfortunately, the use of human rights law instruments has never been done in Indonesia. Notwithstanding, many community environmental disputes are brought to the District Court rather than to the Indonesian Commission of Human Rights (KOMNAS HAM) for further study. As a result, the legal instruments above di not fully protect the victims of environmental pollution. This paper suggests the use of human rights provisions as the basis for prosecution for community environmental-human rights related disputes. For that, a comparative study to the practice of the European Human Rights Court will be of beneficial for Indonesia in protecting the people environmental human rights. In Indonesia the people’s right to a good and healthy environment is constitutional rights and legal rights for it is protected in the Human Rights Law of 1999 No. 39 and Environmental Law of 2009 No. 32. To that end, the human rights approach to the prosecution of environmental disputes are possible because of environmental pollution disturb the enjoyment of human rights.</p>

Ratner, Steven R. <i>The Thin Justice of International Law: A Moral Reckoning of the Law of Nations</i>.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

This article analyzes the European experience of constitutional and legal recognition of environmental rights in European states is analyzed and generalized conclusions are made about the trends and prospects of their recognition. In particular, based on the application of a comparative approach, it is concluded that in the constitutional legislation of the vast majority of European states there is a trend towards legal recognition of rights in the environmental sphere. It is stated that the constitutional and legal recognition of environmental rights in European constitutions is characterized by the absence of a single unified approach to the legal formulation of this right with the use of various definitions and criteria. The most common European constitutional and legal practices regarding the legal consolidation of environmental and legal provisions from their recognition to non-recognition at the constitutional level are also outlined. At the same time, it is concluded that the fact of the absence of constitutional and legal norms regarding the recognition of environmental rights is not yet evidence of the final or cardinal non-recognition, leveling or denial of these rights, since the regulation of environmental rights and environmental legal provisions in these states is carried out either in special sectoral legislation, judicial, administrative precedents, or environmental rights are considered at the constitutional level in the context of other human rights: the right to life, health, adequate standard of living, etc. It is noted that, as a rule, in the constitutions of European states, environmental rights are enshrined in those constitutional sections that are dedicated to human rights and freedoms, and in some cases, in general provisions – when it comes to the constitutional and legal regime of ownership and use of natural resources and/or the obligation of the state to ensure environmental protection. The European experience of the constitutional and legal mechanism for securing environmental rights is, of course, of great importance for the formal legal recognition of these rights, but at the same time, it is not enough for their provision and protection, which, as a rule, requires regulation in special sectoral legislation or judicial practice.

Reviewed by: The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment by David R. Boyd Bradford C. Mank (bio) and Suzanne Smith (bio) David R. Boyd , The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (UBC Press, W. Wesley Pue general ed., 2012), 443 pages, ISBN 978-0-7748-2160-5. I. Introduction David R. Boyd's book entitled, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment, provides a comprehensive overview of nations that have incorporated the right to a healthy environment in their constitutions. Throughout his research, Boyd analyzes the effectiveness of environmental protection [End Page 1021] provisions in national constitutions and seeks to determine whether constitutional provisions guaranteeing the right to a healthy environment have measurable, positive effects on the environment.1 His wide-ranging compilation and analysis of environmental rights provisions in numerous countries is an important contribution to international human rights literature. Although Boyd explains that treating the right to a healthy environment as a fundamental human right is not a new idea,2 his broad research demonstrates that many national constitutions have, in fact, adopted enforceable environmental protection provisions, particularly the right to a healthy environment.3 Boyd's research provides concrete examples of how the constitutional right to a healthy environment, and national legislation guaranteeing that right, have had positive environmental consequences. He predicts that in the future these rights will continue to help combat the effects of global climate change and environmental degradation that permeate national borders to enable the world to achieve the goal of sustainable development.4 II. Part I: "The Emergence and Evolution of a New Human Right"5 A. Environmental Provisions in National Constitutions Boyd argues that environmental rights have the characteristics of human rights.6 Although a human right has various definitions,7 Boyd defines human rights using three elements: First, human rights are universal, meaning that they are both widely agreed upon and held by everyone. Universal applicability is subject to the caveat that the precise interpretation or form of these rights can vary significantly according to local social, economic, cultural, political, and environmental conditions. Second, human rights have a moral basis, indicating that these rights exist whether or not a particular nation, government, or legal system recognizes them. Third, the basic intent of rights is to ensure the dignity of all human beings.8 Boyd concludes that the right to a healthy environment meets these characteristics of human rights.9 [End Page 1022] Boyd identifies how incorporating the right to a healthy environment in national constitutions has had various positive results. For example, he argues that these constitutional provisions have led to more environmental legislation, better enforcement of environmental laws, increased government accountability, and greater participation by concerned citizens, among various other positive outcomes.10 Although Boyd describes the benefits of constitutional provisions that guarantee the right to a healthy environment, he acknowledges the arguments of skeptics. He concedes, [o]pponents argue that the right is vague, absolute, redundant, undemocratic, neither enforceable nor justiciable, going to open the floodgates to litigation, problematic in that it may divert attention from other more important rights, anthropocentric, a form of cultural imperialism, unduly focused on individuals, likely to be ineffective, capable of generating false hopes.11 Boyd provides a comprehensive analysis of, and rebuttal to, each of the abovementioned criticisms. Although determining the exact number of nations that incorporate environmental protection provisions in their constitutions is difficult, Boyd attempts to quantify the number of nations that have made efforts to do so. His research suggests that in 1972, no country's constitution had an environmental rights provision, and only a few imposed some environmental duties.12 Between 1971 and 1976, Switzerland, Panama, Greece, Papua New Guinea, India, and Portugal became the first nations to incorporate constitutional provisions relating to environmental protection in their national constitutions.13 Since then, many other nations have followed course. Today, one hundred and forty-seven out of the one hundred and ninety-three United Nations member nations have constitutions that "include explicit references to environmental rights and/or environmental responsibilities."14 Boyd maintains that "[e]very year since...

The right to a safe, clean, healthy, and sustainable environment as a human right is not new to legal scholarship or the international community. This area is dynamically evolving and new challenges to the protection of environmental rights are emerging. Adoption of a new additional protocol to the European Convention of Human Rights on the right to a safe, clean, healthy, and sustainable environment is considered the most effective way to protect environmental rights and ensure a unified approach to combating the environmental crisis from a human rights perspective. However, this approach forces us to analyse the notions of margin of appreciation, victim status, and positive obligations of states once again. New challenges questioning such an anthropocentric approach, the limits of positive obligations, and the margin of appreciation may arise even upon the adoption of the protocol. The economic and financial status of states may vary and this may negatively affect protocol implementation. The uncertainty that arises in defining the boundaries of such obligations under the protection of environmental rights is especially concerning. In terms of positive obligations, the European Court of Human Rights Court tends to allow a certain margin of appreciation to contracting parties in this area of legal protection. Nevertheless, in light of the recent decision regarding climate change, the protocol is not guaranteed to provide an adequate response to the problem. The desire to be at the forefront of the fight against environmental pollution and climate change has further pushed the Court to take unconventional decisions that differ from previous case law. This article discusses the need to adopt an additional protocol; it focuses on the role of the protocol in defining the Court’s renewed approach to the margin of appreciation and the scope of states’ obligations under the Convention.