Human Rights and the Environment
In recent years the relationship between human rights and environmental issues has become an issue of vigorous debate. The link between the two emphasises that a decent physical environment is a precondition for living a life of dignity and worth. More concretely, a decent physical environment has to do with protection against, for instance, noise nuisance, air pollution, pollution of surface waters and the dumping of toxic substances. Environmental degradation and human rights was first placed on the international agenda in 1972, at the UN Conference on the Human Environment. Principle 1 of the ‘Stockholm Declaration on the Human Environment’ establishes a foundation for linking human rights and environmental protection, declaring that man has a ‘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’. As a result of the 1972 Conference, the United Nations Environment Programme (UNEP) was set up.
In 1992, twenty years after the first global environment conference, the United Nations Conference on Environment and Development (UNCED), also known as the Earth Summit, took place from 3-14 June in Rio de Janeiro. The Conference aimed to help governments ‘rethink economic development and find ways to halt the destruction of irreplaceable natural resources and pollution of the planet’ as, despite international efforts, environmental degradation had accelerated at an alarming rate. Delegations from 178 countries, heads of state of 108 countries and representatives of more than 1,000 NGOs attended the meetings. In Rio, three major agreements were concluded of which the Rio Declaration on Environment and Development is the most pertinent in the context of human rights and the environment. Principle 1 sets out that ‘Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature’ and Principle 4 establishes ‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’.
Principle 10 of the 1992 Rio Declaration was of great importance for the developments that led to the 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) which entered into force in 2001. The Aarhus Convention covers the three themes indicated by its title. Rather than using rights-oriented language the Convention requires states parties to ‘ensure’ that members of the public have access to information, are allowed to participate and have access to judicial review. Although the term ‘right’ is generally avoided, the objectives, structure and context of the Aarhus Convention are rights-oriented, drawing on notions of international human rights law. The Convention is intended to provide for participatory, informational and procedural rights in environmental matters.
In September 2002, the World Summit on Sustainable Development (WSSD) was held in Johannesburg. The WSSD plan of implementation shows clearly that respect for human rights and fundamental freedoms are essential for achieving sustainable development. The plan stresses the importance of action at the national level for successful development. Key components of the plan include good governance, the rule of law, gender equality and an overall commitment to a just and democratic society. Transparency, accountability and fair administrative and judicial institutions are considered essential for sound national policies to be carried out. The plan also emphasises the importance of promoting public participation in environmental decision-making, including measures that provide access to information regarding legislation, regulations, activities, policies and programmes. The plan states that women must be involved fully and equally at all levels of the environmental and developmental process, including those of policy formulation and decision-making.
The human right to a healthy environment is controversial, inter alia, because it has individual as well as collective aspects. If, for instance, after a period of foreign domination it emerges that the physical environment of the dominated people has been severely damaged, it is generally considered logical to allow for a claim to protection (i.e., restoration) of the environment not only by individuals, but in equal measure by the affected population as a whole. In this context, reference can be made to Article 55 of Protocol I to the 1949 Geneva Conventions. This article, which relates to the protection of the environment in time of war, stipulates:
Care shall be taken in warfare to protect the natural environment against widespread, long term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.
The International Committee of the Red Cross and the UN Special Rapporteur on the Adverse Effects of the Illicit Movement and Dumping of Toxic Waste have observed that the article in question is one whose significance is becoming increasingly salient with the passage of time, and that efforts should be made to establish how it can be used in a strictly legal sense.
The mandate of the Special Rapporteur on the Adverse Effects of the Illicit Movement and Dumping of Toxic Waste was adopted with the increasing recognition that illicit traffic and dumping of toxic and dangerous products and wastes pose a serious threat not only to the environment, but also to the enjoyment of human rights, such as the right to life, the enjoyment of the highest attainable standard of physical and mental health, the rights to clean water, food, adequate housing and safe and healthy working conditions, the right to information, the right to participation and freedom of association, and other human rights enshrined in the UDHR and other international instruments. The mandate of the Special Rapporteur has three components: Firstly, outlining the elements of the problem and conducting a general survey of issues involving the human rights of the victims, with special emphasis on difficulties encountered by African and other developing countries; secondly, to identify, investigate and monitor actual situations, specific incidents and individual cases, including allegations received; and thirdly to produce annually a list of countries and transnational corporations engaged in the illicit traffic of toxic and dangerous products and wastes to developing countries.
Explicit provisions concerning the environment are limited in international human rights instruments. The UDHR protects the right to life and a standard of living adequate for health and well-being, rights from which the right to a healthy environment can be inferred. The right to life is protected in the ICCPR and the adequate standard of living and highest attainable standard of health in the ICESCR. Similar provisions are found in other UN treaties.
The ESCR Committee has addressed the right to a healthy environment. In General Comment 14 on the highest attainable standard of health, the Committee established that:
[Th]e right to health embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.
It further elaborated that the right should be interpreted as an ‘inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions’.
In General Comment 15 on the right to water the Committee addressed ‘environmental hygiene’, an aspect of the right to health, as encompassing:
[t]aking steps on a non-discriminatory basis to prevent threats to health from unsafe and toxic water conditions. For example, States parties should ensure that natural water resources are protected from contamination by harmful substances and pathogenic microbes. Likewise, States parties should monitor and combat situations where aquatic eco-systems serve as a habitat for vectors of diseases wherever they pose a risk to human living environments.
ILO 169 (Indigenous and Tribal Peoples Convention) contains a provision on environmental protection, Article 7:
[Indigenous peoples] shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control [...] over their own economic, social and cultural development [...]. Governments shall take measures [...] to protect and preserve the environment of the territories they inhabit.
In the regional systems, Article 24 African Charter and Article 11 Protocol of San Salvador explicitly address the right to a healthy environment. Article 24 African Charter states that ‘[a]ll peoples shall have the right to a general satisfactory environment favourable to their development’. The Charter also sets out that ‘all peoples shall freely dispose of their [?] natural resources’ (Article 21). Article 11 Protocol of San Salvador refers to the ‘right to healthy environment’ and states that ‘everyone shall have the right to live in a healthy environment and to have access to basic public services’ and requires that states ‘shall promote the protection, preservation and improvement of the environment’.
Although provisions regarding the environment are scant, human rights cases related to the environment are being brought to the international and regional supervisory bodies. The Human Rights Committee has dealt with some cases where the environment has played a role. In Bordes and Temeharo v. France it was alleged that foreseen nuclear testing would violate the applicants’ right to life and family. In H.P. et al. v. Canada violations were alleged of the right to life because of the environmental impact of nuclear stockpiles situated close to housing (inadmissible because of non-exhaustion of domestic remedies).
Like the ICCPR, the European Convention does not contain provisions on the environment but the European Court has decided some cases where the environment has come into play. For instance, in López Ostra v. Spain, the Court held that Article 8 ECHR had been violated because the applicant had not been indemnified by the state for damage resulting from environmental pollution. A comparable issue – damage resulting from mismanagement of an urban waste dump - was raised in Oneryildiz v. Turkey. In Zander v. Sweden water contamination was found to be a threat to security of person - an important step in broadening the conception of Article 6(1) ECHR to include environmental rights. In Tãtar v. Romania the Court found a violation of the right to respect for private and family life on account of the Romanian authorities’ failure to protect the right of the applicants, who lived in the vicinity of a gold mine, to enjoy a healthy and protected environment. The Court observed that ‘pollution could interfere with a person’s private and family life by harming his or her well-being’, and that ‘the State had a duty to ensure the protection of its citizens by regulating the authorising, setting-up, operating, safety and monitoring of industrial activities, especially activities that were dangerous for the environment and human health’. In Hatton et al. v. The United Kingdom, the issue raised concerned a violation of the right to privacy and family resulting from noise pollution from night air-traffic (see also Moreno Gomez v. Spain). In Guerra et al. v. Italy, the state was found to have violated the right to privacy and family by not providing information on environmental pollution that would have allowed the applicants to assess health risks they were facing by living in a certain area. In Hamer v. Belgium, the Court found the right to property was permissibly restricted because of the legitimate aim of environmental protection.
In the Inter-American system, the Inter-American Commission has, when reviewing the implications of environmental degradation for human rights, noted that:
[T]he American Convention on Human Rights is premised on the principle that rights inhere in the individual simply by virtue of being human. Respect for the inherent dignity of the person is the principle which underlies the fundamental protections of the right to life and to the preservation of physical well being. Conditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being. (Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/ V.II.96, 1997).
The majority of cases involving the right to a healthy environment in the Inter-American system are based in communal or indigenous rights rather than individual rights. The first environmental case was brought on behalf of the Yanomani Indians of Brazil (Case 7615), where the Commission found that the state had violated its responsibility to provide adequate protection for the health and safety of the Yanomani in the construction of a highway and by neglecting to address hostilities between mineral prospectors and the Indians. The Commission found violations of the right to life, liberty and security, the right to residence and movement and the right to health under the American Declaration. Mayagna (Sumo) Awas Tingni Community v. Nicaragua concerned government-sponsored logging on indigenous lands without prior consultation with the community. The Commission found a violation of the right to recourse and the right to protection of private property. Dann v. The United States (Case 11.140) concerned members of the Shoshone Tribe in Nevada who alleged that their rights to equal protection before the law, right to religious freedom and worship, right to family protection, right to work with fair remuneration, right to a fair trial and right to property under the American Declaration had been violated because of, inter alia, the state’s appropriation of their lands through an unfair procedure and permitting gold prospecting on traditional lands. The Commission found a violation of the right to property, fair trial and equality before the law. Maya Indigenous Communities of the Toledo District v. Belize (Case 12.053) concerned lands traditionally used and occupied by the Maya people. They alleged that, by granting logging and oil concessions in and otherwise failing to adequately protect those lands, failing to recognise and secure their territorial rights in those lands, and failing to afford them judicial protection of their rights and interests in the lands on account of delays in court proceedings instituted by them, the state had violated several rights under the ACHR. According to the Petitioners, the state’s contraventions had impacted negatively on the natural environment upon which they depended for subsistence, had jeopardised the Maya people and their culture and threatened to cause further damage in the future. The Commission held that the state had violated the communal property rights of the Maya people by, inter alia, failing to put into place adequate safeguards and mechanisms, to supervise, monitor and ensure that it had sufficient staff to oversee that the execution of the logging concessions would not cause further environmental damage to Maya lands and communities. In Reyes et al. v. Chile the Inter-American Court ruled that Chile had violated the right to freedom of expression – which includes the right to seek, receive and impart information – by denying the applicants information regarding a government-approved forestry project and its potential environmental impact. The Court also found a violation of Article 25 as Chile had failed to guarantee effective judicial recourse. Saramaka people v. Surinam concerned a damming project which displaced the Saramaka and destroyed sacred sites, as well as mining concessions which polluted traditional lands and water resources. The Court held that Surinam had violated the right to property and procedural rights, along the same lines as the Commission in the Awas Tigni case.
Under the African system, the African Commission took a landmark decision in 2001 with regard to the right to a clean environment. In a case where it was alleged that the Nigerian government had contributed to gross violations of human rights through the actions of its military forces and unsound environmental management related to exploitation of the Niger Delta, the Commission found that the Nigerian government had violated, inter alia, the right to a clean environment by directly contaminating water, soil and air, which harmed the health of the Ogoni people living in the area, and by failing to protect the community from the harm caused by oil companies. The Commission emphasised that the right to a clean and safe environment is critical to the enjoyment of economic, social and cultural rights. This right, it was held, requires a state to take reasonable measures to prevent pollution and ecological degradation, to promote conservation and to secure an ecologically sustainable development and use of natural resources. The duty to respect the right to a clean environment largely entails non-interventionist conduct from the state, such as refraining from carrying out, sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual. The Commission stated that compliance with the right to a clean environment must include undertaking or at least permitting independent scientific monitoring of threatened environments, and requiring and publicising environmental and social impact studies prior to any major industrial development. This right also requires that appropriate monitoring is undertaken, information is disseminated to the communities exposed to hazardous materials, and that meaningful opportunities are guaranteed for individuals to be heard and to participate in development decisions affecting their communities. The Nigerian government, it was held, had discharged none of these obligations (see The Social and Economic Rights Action Centre et al. v. Nigeria, Communication 155/96).