Introduction
Environmental, Economic, Social and Cultural rights (hereafter EESC) are directly related to the basic necessities of life such as clean environment, water, work, food, and housing, health care, education, culture etc. Therefore EESC rights have a bearing on poverty thus violations of EESC rights are the clear violations of human rights. In this back drop, this article will analyze the human rights violations of Khu-ha villagers brought by the Thai Mining company. Given the recent Thai court verdicts in the Khu-ha vs. Mining Company case, this paper highlights the importance of court decision regarding the environmental dimension of human rights and community rights. Nonetheless, this article advocates the recognition and protection of EESC rights particularly right to a clean environment, presents a plea for a more participatory community oriented approach, based on the collective social dimension of human rights affected by environmental degradation.
Background
The peaceful environment of Khu-ha has been disrupted since 1997 when a local mining company started extracting lime stone from the lime mountain, located in the midst of three villages in Ratta-phum district of Songkhla province. The lives of Khu-ha natives have been completely disturbed due to the deep impact of the mining activities. The life of the Khu-ha villagers revolves around the Khu-ha mountain. This mountain not only provides the water for their agricultural fields but also is a source of bats generated organic fertilizers. Apart from providing fish and lush green environment, Khu-ha Mountain is cultural symbol of the village. However, mining activities has shaken the souls of the villager life. In this connection it would be worthwhile to note that mining activities at Khu-ha has violated a number of human rights which is given below-
The Right to Livelihood
Since the mining activities have begun, the level of water has gone down, affecting the paddy crops, fruit garden and rubber fields therefore adversely affecting the income of villagers. This has clearly undermined the lively hood of the local people. Nonetheless, a duck farm, adjacent to the lime mountain, was deeply affected. Due to the mine blasting dukes stopped hatching eggs; even the size of the eggs becomes small. Their pet’s died, too. This resulted in the remarkable loss of income to a Khu-ha native.
The Right to Water
Due to the use of explosives in the mining process, the water becomes contaminated. Using this water for agricultural purpose and house hold activities can be hazardous. In addition, local animals and birds mainly survive on this source of water.
The Right to clean Environment and the Right to Health
Explosives endanger people’s health.
Due to the incessant explosions in the lime mountain, air in local area has becomes polluted and has the potential to make villagers deaf. Some locals developed the respiratory diseases. Many of them suffer with depression and anxiety. After the explosion, affected area is usually full of dust particles and small pieces of flying stones causing serious health problems to the villagers. Cases of Silicosis are on the rise. This is clear disregard of the international law of the right to health and clean environment.
The Right to Housing and Right to preserve Culture
Sheer impact of explosion has caused the cracks in the local building. Wide crackes can be seen in many houses. So far 300 houses are deeply affected. Local people can not open the window due to the noise and dust. Since Khu-ha mountain is the center of the cultural life of the villagers particularly prevailing belief that sprits lives on the mountain. However, cultural rights of Khu-ha natives are not respected as miners have blasted sacred lime mountain.
Access to Information and Participation in decision-making process
Villagers have been supplied information only if insisted. The mining contract was not made public. In addition, natives of the Khu-ha village were not consulted before initiating the mining activities. Even, they were not given opportunity in the decision making process to decide the fate of their village life and its environment.
Restrictions on the Movements
Local villagers usually go for fishing into the water stream located inside the lime mountain. However, mountain area has been cordoned off to the local population restricting their movement around the Khu-ha Mountain. Since Lime Mountain has been leased to the mining company therefore an intruder can be prosecuted under the Thai law for trespassing.
Right to profit sharing
Though the mining activity has started in 1997, company never intends to share the profit with the local villagers. However, in the name of corporate social responsibility company did pay lip services in the form of meager compensation to few people. There is hardly any meaningful investment in the local infrastructure.
However, on 28 December 2010, with the help of Community Resource Centre (hereafter CRC), a Bangkok based N.G.O., and 4 villagers have filed case to Songkhla khwaeng court against company to pay compensation on liability of damaged house and livelihood for 4 villagers. The 4 villagers asked 150,000 to 300,000 baht each for compensation. The court has accepted to the trial by Black case no. 588/2553. In addition, on 30 December 2010, CRC lawyer and two more villagers have filed case to Songkhla provincial court for asking the mining company to pay compensation of 1,700,000 and 2,700,000 baht each. The court has accepted to be trial by Black case no. 1280/2553.
Current Situation
However despite Thailand being signatory of the U.N. Convention, rights of Khu-ha communities is being violated. Most local people are often burdened with environmental costs and remain marginalized and poor as most have limited employment opportunities; there is no economic share in natural resources wealth extraction, poor community infrastructural development led to the backwardness. Displacements are rampant to make way for mining operations. Corporate social responsibility is not based on big community social development projects but only small donations. There is no major investment in roads, clinics, or developing the area or major agricultural project. In addition to the environmental damage, there is limited access to information and participation in decision and planning process. There is fear and lack of confidence amongst the people to question government and mining companies. However in some cases people have shown remarkable courage to challenge their rights violation, such as Khu-ha natives. Nonetheless, there is limited knowledge of channels to demand and claim the right to benefit from natural resources and other rights. Nonetheless, mining activity obliviously has devastated the lives of Khu-ha villagers. Khu-ha villagers have left no stone unturned to demand their rights. They went every nook and corner to complain their grievance but no avail. In order to fight for their human rights and environmental rights, Community Resource Center came forward to join their struggle by providing them legal aid and advocating their rights at the local, national and international level.
Efforts of Community Resource Centre (CRC)
Along with providing legal advice and advocating community rights, CRC is empowering communities by running folk school which has been quite successful. Thai village communities were made aware about their rights and way to challenge their violations and to get the redress. In addition, C.R.C. lawyers were able to make the villagers voices echoed in the narrow walls of the judiciary and red-tap. The outcome of their effort was the landmark jurisdiction by the Songhkhla khwaeng court, which will be discussed in separate section.
International Standards regarding human rights and Environmental Rights
All rights are human rights including Environmental. Economic, social and Cultural rights (EESCR), in addition, all human rights are universal, indivisible and interdependent and interrelated. For example deprivation of EESC rights constitutes threat to the right to life. International Convention on Economic, Social and Cultural Rights (1966), International Convention and on Civil and Political Rights (1966), African Charter on Human and People’s Rights (1981) and various international environmental conventions and protocols recognizes EESCR.
The Human Dimension of Environmental Law
1972 Stockholm Declaration on the Human Environment declared that ‘Man 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 generation (Principle 1 of the Declaration)’. In its simplicity, this statement contained all the questions of the environmental protection. It recognized that the enjoyment of freedom and equality which permits human beings is inseparable from the preservation of an environmental quality which permits human dignity and human welfare (Francioni, 2010, p.44). In 2005, the Council of Europe adopted a ‘Manual on Human Rights and the Environments’ which takes notice of the growing jurisprudence of the Strasbourg Court on the subject and lays down a set of general principles which have a direct impact on the adjudication of environmental claims which are based on specific Convention rights such as rights to life, property and fair hearing as well as private and family life. According to these principles, States are always obliged to take and implement measures to control environmental problems which affect the enjoyment of human rights recognized in the Convention and States have an obligation to provide information relating to serious environmental risk, to ensure public participation in environmental decision-making and access to environmental justice. In its General Comments No. 15, the UN Committee on Economic, Social and Cultural Rights has recognized that Stats are under an obligation to ensure adequate and accessible supply the water for drinking, sanitation, and nutrition in accordance with Article 11 and 12 of the 1966 UN Convention on Economic, Social and Cultural Rights.
Economic Rights and Environmental Rights
The European Court and other human rights bodies have developed a rich jurisprudence on the role of human rights in adjudicating the legality of certain environmental impacts on life, property, and the people affected. In Glaims Gold v. US case a Canadian mining company claimed that its investment in the United States has been injured by the American authority’s denial to proceed with mining in a sensitive area of environmental quality and of the cultural importance in Northern California. The arbitral decision issued in June 2009 recognized that the conservation of environmental quality and the cultural values attached to the specific areas- which were of great importance as ancestral land of the local native American tribes- were legitimate aims of the United States justifying the limitation of property rights and other economic interest of the investors. However the Strasbourg Court has made a positive contribution to the construction of an environmental dimension of several rights enshrined in the European Convention on Human Rights (ECHR). In the cases of Lopez Ostra v. Spain (ECHR Series A, No.303 C) and Guerra v. Italy (ECHR Rep, 1988-1, 210), the court ordered that along with State, private parties can be held for their disregard of the environmental obligations. However, in Fadayeva v. Russia (ECtHR Repv, 2005-iv, 255), the court declared that industrial activities with a heavy environmental impact gave rise to the respondent state’s responsibility for failure to regulate private industry when such failures resulted in a form of environmental degradation such as a failure to secure human rights under the Convention. With regard to the right to life, the Court declared in Oneryildiz v. Turkey case that the ‘positive obligation to take all appropriate steps to safeguard for the purposes of the Article 2...’entails above all a primary duty on the State to put in the place a legislative and administrative framework designed to provide effective deterrence against threat to the right to life. In Taskin v. Turkey (Ct HR 1149 2004-X Eur) Court emphasize the procedural duties concerning provision of information and consultation with affected parties as a condition for the fulfillment of the obligations inherent in Article 8 of the Convention (private and family life and for the proper balancing of economic developments goals and human rights.
The UN Convention
Environmental clams have been brought under the UN Human Rights Committee under the minority protection clause of Article 27 of the Convention on Civil and Political Rights. This a cultural provision which expressly refers to the rights of persons belongings to such minorities, rather then to the collective rights of the groups as such. Consistently with this wording, the UN Human Rights Committee has addressed environmental impacts on traditional life of minorities in the perspective of the individual rights of minority members rather than of the community. In Lubicon Lake Band v. Canada, the Human Rights Committee found that the adverse environmental impacts caused by oil and gas extraction on the traditional lands on an indigenous community as a whole, and not on individuals members of the group.
A Landmark Court decision in the case of Khu-ha Mountain
People of Khu-ha village in Ratta-phum district, Songhkhla Province in Southern Thailand won a case against a private mining company in the Khwaeng court. In his decision on 1 August 2011, judge declared that mining could be the major cause of the violation of the human rights. Even though mining company has followed health safety standards, in the case of any health or sickness in mining area, company will be responsible for the compensation. However, judge ordered the company to compensate for the damages to the houses and dust to make the house dirty occurred due to the mining blast. Ironically, in the absence of the law on the flying pieces of stones (during the blasting process) and loudness of blasting in the mining area, company went away scot free. However, Khu-ha natives have decided to appeal into the appeal court in order to stop the mining and to get enough compensation. Nonetheless, mining company, in its utter disregards to the Khu-ha people, mining company did not showed up in the court proceedings. Moreover, the fight to get the justice is going on with the help of CRC.
Contributed by-
Amit King
Institute of Human Rights and Peace
Mahidol University
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