30 Right to Environment

Dr. Aneesh V. Pillai

epgp books
Table of Contents

1.1 Objectives

1.2 Introduction

1.3 Right to Environment: Concept

1.4 Right to Environment: A Group Right or Third Generation Right

1.5 Development of Right to Environment at International Level

1.6 Right to Environment: A Derivative from other Human Rights

1.7 Human Right to Environment: A Distinct Human Right

1.8 Conclusion

1.9 Broad Questions

1.10 References

 

1.1 OBJECTIVES

  • To examine the concept of right to environment
  • To identify whether right to environment is a group or not
  • To learn the development of right to environment at international level
  • To know the present position of right to environment

1.2 INTRODUCTION

All human beings depend on the environment in which we live. A safe, clean, healthy and sustainable environment is integral to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation. Without a healthy environment, we are unable to fulfill our aspirations or even live at a level commensurate with minimum standards of human dignity. At the same time, protecting human rights helps to protect the environment. In past few decades the recognition of the links between human rights and the environment has greatly increased. As a result right to environment has been recognized as human right. Since the realization of right to environment is not only depend upon the both the affirmative and negative duties of the state, but also upon the behaviour of each individual, right to environment is categorized as a third generation human right or solidarity rights.

1.3 RIGHT TO ENVIRONMENT: CONCEPT

 

The concept of right to environment or environmental right is an evolving norm and is difficult to provide a definite meaning. This is because in most of the legal systems and legal instruments at international level offers a right to environment with certain qualifications such as Clean, safe, satisfactory, healthy, viable, decent and sustainable2. Hence it is a bundle of interests and claims available to a person from his environment..3”

 

Ms. Fatma Zohra Ksentini, Special Rapporteur on Human Rights and the Environment for the Sub-Commission on Prevention of Discrimination and Protection of Minorities has identified various fifteen interrelated rights as the part and parcel of right to environment or environmental rights. They are

  • right to a secure, healthy and ecologically sound environment;
  • Non- discrimination in regard to actions and decisions that affect the environment;
  • right to an environment adequate to meet equitably the needs of present generations and that does not impair the rights of future generations to meet equitably their needs;
  • the right to protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems;
  • the right to the highest attainable standard of health free from environmental harm;
  • the right to safe and healthy food and water adequate to their well-being; g) the right to a safe and healthy working environment;
  • the right to adequate housing, land tenure and living conditions in a secure, healthy and ecologically sound environment;
  • the right to benefit equitably from the conservation and sustainable use of nature and natural resources for cultural, ecological, educational, health, livelihood, recreational, spiritual and other purposes. This includes ecologically sound access to nature;
  • the right to information concerning the environment;
  • the right to hold and express opinions and to disseminate ideas and information regarding the environment;
  • the right to environmental and human rights education;
  •  the right to active, free and meaningful participation in planning and decision-making activities and processes that may have an impact on the environment and development;
  •  the right to associate freely and peacefully with others for purposes of protecting the environment or the rights of persons affected by environmental harm;
  • the right to effective remedies and redress in administrative or judicial proceedings for environmental harm or the threat of such harm, etc.

The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters, 1998 views environmental rights as strengthening the role of members of the public and environmental organizations in protecting and improving the environment for the benefit of future generations. The Convention recognizes citizens’ environmental rights to information, participation and justice and it aims to promote greater accountability and transparency in environmental matters. According to South African Constitution right to a healthy environment means individuals right:

  • to an environment that is not harmful to their health or wellbeing; and
  • to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that
    •  prevent pollution and ecological degradation;
    •  promote conservation; and
    •  secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

According to Myriam Lorenzen right to environment is inclusive of many rights such as the right to a clean and safe environment which is the most basic one; the right to act to protect the environment as well as the right to information, to access to justice, and to participate in environmental decision-making. According to Rhuks, “One may conclude that environmental rights may be broadly categorized into two: substantive and procedural rights. Of the substantive rights, the right to a clean and safe environment is the most basic one and other related rights include the rights to safe drinking water, to clean air, and to safe food. The procedural aspect refers to the processes by which citizens may act to protect the environment. This includes the rights to environmental information, to participation in environmental decision-making and to access to justice”.

In order to realize the right to environment it requires a healthy human habitat, including clean water, air, and soil that are free from toxins or hazards that threaten human health. It imposes various obligations to the governments such as: a) to refrain from interfering directly or indirectly with the enjoyment of the right to a healthy environment; b) to prevent third parties such as corporations from interfering in any way with the enjoyment of the right to a healthy environment, and; c) to adopt the necessary measures to achieve the full realization of the right to a healthy environment.

1.4 RIGHT TO ENVIRONMENT: A GROUP RIGHT OR THIRD GENERATION RIGHT

The term ‘generation’ distinguishes the various conceptual groups of human rights currently recognized in international law. Use of this term does not imply a hierarchical division of human rights, nor does it imply that succeeding generations preempt or gain primacy over earlier generations; rather, it recognizes that the human rights regime is essentially dynamic and that additional human rights may be proclaimed as changing human needs are recognized and addressed.

 

A decent physical environment is a precondition for living a life of dignity and worth. Such an environment has to do with protection against, for instance, noise nuisance, air pollution, pollution of surface waters and the dumping of toxic substances, etc. In fact the existence of a clean and safe environment is a precondition for the exercise of other human rights. UNEP High Level Expert Meeting on the future of Human Rights and Environment has identified three main dimensions of the inter-relationship between human rights and environmental protection such as a) The environment as a pre-requisite for the enjoyment of human rights (implying that human rights obligations of States should include the duty to ensure the level of environmental protection necessary to allow the full exercise of protected rights); b) Certain human rights, especially access to information, participation in decision-making, and access to justice in environmental matters, as essential to good environmental decision-making (implying that human rights must be implemented in order to ensure environmental protection); and c) The right to a safe, healthy and ecologically-balanced environment as a human right in itself (this approach has been debated)8. Thus right to environment should also be considered as basic human right.

 

The right to environment can be treated as a part of third generation or group rights. This is because due to the peculiar nature of this right if the right to environment is conferred to a individuals, persons may decide how to deal with his environment and such decisions may adversely affect the enjoyment of right to environment by others. Hence giving peoples or group rather than individuals a right to determine how their environment and natural resources should be protected and managed can ensure the best use of environment and natural resources. Moreover collective or group efforts is vital for the fulfillment of this right as one single individual cannot regulate air and water quality, acid rain, radioactive fallout, and other threats to the environment in a comprehensive manner. As result the right to environment has been categorized as a group or third generation right.

According to Jennifer A. Downs, “When the natural environment is damaged and contaminated to the extent that it threatens life, health, food, shelter, and minimum work standards, it also becomes a threat to established human rights. When people must struggle to obtain the basic necessities of life, political freedoms and human rights may appear meaningless to them. The destruction of life-sustaining ecosystems, the pollution of the world’s water, land, and air, the inability to control the world’s wastes, and other related environmental problems prevent people from securing the minimum requisites for health and survival, thereby impeding and even prohibiting the effective exercise and enjoyment of human rights for much of the world’s population. Hence, recognition of a new human right to environment as a ‘third generation’ human right, necessary to facilitate fulfillment of the first and second generations of human rights which already guarantee basic rights and freedoms to all people.

1.5 DEVELOPMENT OF RIGHT TO ENVIRONMENT AT INTERNATIONAL LEVEL

The environment and environmental protection have only recently become a concern of the international community. After World War Two, the reconstruction of the economy and lasting peace were the first priorities; this included the guarantee of civil and political as well as social and economic human rights. However there has been a movement in favour of protection of various aspects of environment since 1970.

Currently, human right to environment is protected by international law despite the absence of a general framework convention. This is because there are various international agreements which govern specific environmental issues, like climate change, sustainable development or biodiversity; etc, and these agreements in one way or other way imposes an obligation to refrain from causing environmental damages. However, there are few international documents which directly refer to right to environment such as Stockholm Declaration and Rio Declaration. It can be seen that at international level right to environment has been identified in two ways:

a) As a derivative right from other human rights;

b) As a distinct human rights.

1.6 RIGHT TO ENVIRONMENT: A DERIVATIVE FROM OTHER HUMAN RIGHTS Charter of the United Nations, 1945

The United Nations Charter does not define human rights to environment. However, the Article 55 of the Charter requires states’ commitments to promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. Although environmental issues are not expressly mentioned in the UN Charter, these social and economic provisions lay the foundation for the elaboration of human rights to incorporate environmental protection. Environmental degradation negatively affects standard of living, employment, health, social progress, and making environmental protection central to achieving the Charter’s goals. The requirement that states promote respect for these social and economic interests as well as human rights and fundamental freedoms provides a basis for imposing positive state obligations to protect the natural environment.

Universal Declaration of Human Rights, 1948

The UDHR does not expressly refer the environment, but it does proclaim economic, cultural, and social rights which can be dependent on a healthy environment for their realization. These include the right to life, the right to freedom from arbitrary interference with privacy, family, or home, the right to own property, the freedom of religion, including the freedom to manifest religion in practice, the right to favourable conditions of work, the right to participate in cultural life, and the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and social services”. Environmental degradation implicates all of these rights. The UDHR also declares procedural rights fundamental to the protection of all human rights as well as environmental interests. These include a right to an effective remedy for acts violating the fundamental rights, a right to a fair and public hearing, the freedom to seek, receive, and impart information and ideas, and the right to take part in government.

International Covenant on Civil and Political Rights, 1966

 

The ICCPR affirms the right to life and recognizes this right as fundamental and non-derogable. The Human Rights Committee has broadly interpreted this right to impose obligations on states to take measures to protect human life, including measures to reduce infant mortality, increase life expectancy, and eliminate malnutrition and epidemics. Environmental threats to human life implicate this broad right to life. The Special Rapporteur on Human Rights and Environment stressed that the right to life imposes strict duties on a State Party to prevent and safeguard against the occurrence of environmental hazards that threaten the lives of human beings, meaning that State responsibility arises regardless of whether an act or omission is deliberate, reckless, or merely negligent. Accordingly, the duty to protect the right to life entails an obligation for Parties to establish and operate adequate monitoring and early-warning systems to detect environmental hazards before they threaten human lives.

The ICCPR also affirms the right of self-determination by virtue of which all peoples are able to freely determine their political status and pursue their economic, social, and cultural development, and to dispose of their natural wealth and resources. This grant of a collective right to control over natural resources is particularly relevant in the context of indigenous groups who may be denied access to natural resources by environmentally damaging development activities. The ICCPR also provides for relevant procedural rights, including the right to a fair hearing, the right to freedom of expression including the right to receive information, the right to association, and the right to take part in public affairs.

International Covenant on Economic, Social and Cultural Rights, 1966

The Covenant protects various rights such as the right to adequate standard of living including rights to adequate food, clothing and housing, the right to health, and the right to culture. Article 11 recognizes “the right of everyone to an adequate standard of living for himself and his family, including adequate food and water, clothing, and housing, to the continuous improvement of living conditions.” Parties, individually and through international co-operation, shall adopt measures necessary to achieve the full realization of the right. For instance, States may adopt specific programs to improve methods of food production and reform agrarian systems to achieve the most efficient development and utilization of natural resources. These components of the right to an adequate standard of living are linked to environmental protection. Realization of the right to food is closely tied to environmental factors such as water, climate, soil quality, air quality, and biological diversity. Pollution and land degradation can impact the right to housing through rendering existing or potential residential areas uninhabitable. Environmental degradation can affect the right to culture through loss of natural sites and ecosystem services which form part of cultural identity or perform an important cultural role. Displacement as a result of environmental disaster could also implicate the right to culture.

Convention on the Rights of the Child, 1989

This Convention sets out the civil, political, economic, social and cultural rights of children. Convention specifically refers to the environment in connection with the child’s right to health. It recognizes a child’s right to enjoy the highest attainable standard of health in order to combat disease and malnutrition, through, inter alia, “the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution”. Further, Convection states that information and education are to be provided to all segments of society on hygiene and environmental sanitation36. In interpreting this article, the Committee on the Rights of the Child emphasized that states are required to take all appropriate measures to prevent the damaging effects of environmental pollution and contamination of water supplies on children. So also Article 27 provides that Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. Like the corresponding provision regarding the right to an adequate standard of living in the ICESCR, fulfillment of this provision necessarily requires consideration of prevention of pollution and maintenance of ecosystem services requisite for meeting basic human needs.

 

The Declaration on the Right to Development 1986; Vienna Declaration and Programme of Action 1993; Beijing Declaration and Platform for Action 1995; Declaration on the Rights of Indigenous Peoples 2007; Convention relating to the Status of Refugees, 1951; Convention on the Elimination of All Forms of Racial Discrimination, 1965, etc. also deals with environmental rights in one way or other way.

1.7 HUMAN RIGHT TO ENVIRONMENT: A DISTINCT HUMAN RIGHT

The first written suggestion that there should be a human right to a healthy environment came from Rachel Carson in Silent Spring, published in 1962, ‘If the Bill of Rights contains no guarantees that a citizen shall be secure against lethal poisons distributed either by private individuals or by public officials, it is surely only because our forefathers, despite their considerable wisdom and foresight, could conceive of no such problem’. Similarly, in her final public speech before dying of cancer, Carson testified before President Kennedy’s Scientific Advisory Committee, urging it to consider ‘A MUCH NEGLECTED PROBLEM, THAT OF THE RIGHT OF THE CITIZEN TO BE SECURE IN HIS OWN HOME AGAINST THE INTRUSION OF POISONS APPLIED BY OTHER PERSONS. I SPEAK NOT AS A LAWYER BUT AS A BIOLOGIST AND AS A HUMAN BEING, BUT I STRONGLY FEEL THAT THIS IS OR OUGHT TO BE ONE OF THE BASIC HUMAN RIGHTS’. THE Silent Spring highlighted the hazards of chemical pesticides and fertilizers and has raised public consciousness towards this issue. Silent Spring was highly influential in both North America and Europe, and is credited with catalyzing the birth of both grassroots environmentalism and modern environmental law.

The first formal recognition of the right to a healthy environment came in the Declaration of the United Nations Conference on the Human Environment adopted in the STOCKHOLM IN 1972. THE PRINCIPLE I OF THE DECLARATION STATES 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 GENERATIONS’.

This declaration was reaffirmed in the Rio Declaration on Environment and Development (Rio Declaration), 1992. The Rio Declaration further asserts that human beings ‘are entitled to a healthy and productive life in harmony with nature,’ and that states have ‘the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’.

The Rio declaration was very influential and as a result every major international convention concerning multilateral cooperation added environmental protection as one of the goals of the states parties. Areas of international action that developed during earlier periods, including human rights, began evolving in new directions to take into account environmental considerations. The result was an infusion of environmental norms into most branches of international law, including free trade agreements that mention environmental cooperation as an aim.

1.8 CONCLUSION

The recognition of a substantive right to environment is still fraught with controversy in some quarters as it brings a number of new and challenging elements to the human rights theory. Firstly, it should take into account the need to preserve the very existence of life on earth necessary for humankind’s survival, and as a second step, ensure that the conditions of life provided to humans are conducive to a decent quality of life. These two aspects require the preservation of both local ecosystems and livelihoods, and the global equilibria of the ecosphere. However, in the four decades since the Stockholm Declaration, the right to a healthy environment rapidly migrated around the globe. As of 2012, 177 of the world’s 193 UN member nations recognize this right through their constitution, environmental legislation, court decisions, or ratification of an international agreement. Thus it can be see n that, recent decades have witnessed a progressive integration of international human rights law and international environmental law. Right to Environment has been widely recognized in international environmental policy, domestic constitutions, and the decisions of international tribunals.

you can view video on Right to Environment

Reference

  • http://globalengage.ibo.org/eng/node/1442
  • Ubud Bali, “World Peace – What do you think are the necessary and most important factors to create and sustain global harmony for more than one day?”, available at http://www.ted.com/conversations/7116/world_peace_what_do_you_thin.html
  • http://www.peace.ca/importanceofcop1.html
  • Nancy Flowers, “CompasitoManual on Human Rights Education for Children”, available at http://www.eycb.coe.int/compasito/pdf/Compasito%20EN.pdf
  • Patricia Daley, “Challenges to Peace: Conflict Resolution in the Great Lakes Region of Africa”, Third World Quarterly, Vol. 27, No. 2 (2006), pp. 303-319.
  • Naghma Siddiqi, “The Role of ISLAM in Establishing PEACE in the Contemporary World”, http://islamand peace.org/sites/default/files/ConceptofPeaceinIslamandItsRelevanceintheModernWorld.pdf
  • Roberta Lynn Wodenschec, “The Human Right to Peace: Why Such a Right Should be Recognized”, A Research work submitted to the Faculty of the School of International Service of American University, 2006, p.6
  • David P. Barash, Charles P. Webel, Peace and Conflict Studies, Sage Publications, 3rd Edn- 2014, p.4
  • Sumita Chaudhuri,“Peace Education in a Broader Perspective”, Education Journal, Special Issue: Gender, Peace and Education. Vol. 4, No. 1-1, 2015, pp. 6-9.
  • David P. Barash, Charles P. Webel, Peace and Conflict Studies, Sage Publications, 3rd Edn- 2014, p.4
  • Ingvild Larssen, “Peace and Human Rights, A Comparative Analysis on the Role of Human Rights in Norwegian Peace Processes in Sudan”, Master thesis in, Master of Philosophy in Peace and Conflict Transformation, Faculty of Social Sciences, University of Tromsø, Spring 2009.
  • Baljit Singh Grewal, “John Galtung: Positive and Negative Peace”, available at http://www.activeforpeace.org/no/ fred/Positive_Negative_Peace.pdf.
  • Ingvild Larssen, “Peace and Human Rights, A Comparative Analysis on the Role of Human Rights in Norwegian Peace Processes in Sudan”, Master thesis in, Master of Philosophy in Peace and Conflict Transformation, Faculty of Social Sciences, University of Tromsø, Spring 2009.
  • David P. Barash, Charles P. Webel, Peace and Conflict Studies, Sage Publications, 3rd Edn- 2014, p.4
  • S.K. Sharma, Privacy Law: A Comparative Study, Atlantic Publishers & Dist, New Delhi, 1994, p.17.