Human Rights and Corporate Environmental Wrongs
Abstract: Countering the effects of human-induced environmental threats around the world is more urgent than ever. At the same time the power of companies has increased in the last decades. Activities of companies are capable of affecting human health negatively and in some cases the effects are so severe as to give rise to human rights violations. The question that is asked in this thesis is whether this problematique can be addressed through international human rights law. One potential problem in this regard is the establishment of legal causation between corporate (mis-)conduct and effects on human health. In the modern technological society alleged victims falter in proving causation when for instance there are multiple sources of pollution, when sources and effects are geographically dispersed and when the effects of chemical reactions of a specific substance with other substances are complex. Despite the urgency of countering environmental threats, there are few instances of recognition of an independent human right to a healthy environment. Instead, alleged victims have had recourse to existing human rights mechanisms. Therefore, the thesis asks the question what the prospects are for an emerging norm for the accountability of companies violating civil and political rights in environmental cases, within the legal framework of justiciable rules already in place. For this purpose a norm-theory is used where law is understood as a multi-layered system of norms and legal practices. The norm goes in this theory through different phases, the 'life-cycle' of the norm. In the 'norm-emergence' phase the norm is strongly contested and 'norm entrepreneurs' are trying to convince other actors of adopting the norm. In the succeeding phase, 'norm cascade', the norm is more widely accepted, but still facing resistance. In the last phase, 'internalization', the norm is taken for granted. Another component in this theory is the three entry points of the norm. The norm has a will-input, a cognition-input and a systemic limitations-input. After having examined case-law on human rights and the environment in the European, Inter-American and African human rights systems, and the UN Human Rights Committee, I conclude that there is an increasing recognition that environmental threats can be addressed in a human rights framework. In this regard, a number of judges function as 'norm entrepreneurs' pushing for the integration of environmental values in human rights law. At the same time, the doctrine of state positive obligations for acts of third parties giving rise to an interference with a human right has been internalized in all jurisdictions examined, and the case-law evidences an increased willingness to address the relationship between state and companies. Regarding causation a theory more open to natural science is adopted. At the same time the use of evidentiary rules as to affect the assessment of legal causation is emphasized. A distinction is made between general and specific causation, the former indicating evidence of a general nature, such as effects from a toxic in the human body or on a population, while the latter indicates specific effects on an applicant. In the European system certain judges, as 'norm entrepreneurs', have understood legal causation as a question of will and cognition in the legal culture rather than a systemic limitation in law. This has affected the understanding of legal causation in the European system as to be more accommodating to the integration of environmental values in the ECHR through the increased reliance on general causation. However, still lacking a wider support, the norm remains in the 'norm-emergence' phase. By contrast, in the Inter-American and African systems, a different legal culture recognizing collective rights mitigates the problems of legal causation since it then suffices to evidence general causation. Therefore the prospects of an emerging norm may be better in these systems than in the European system.
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