Sustainable development and the search for a better environment, a better world: a work in progress.

• Author: Eejima, Nina M.

I.

INTRODUCTION

In the ever-evolving development of international sustainable development(1) principles and norms, various analytical approaches have emerged, all with the aim of providing a conceptual framework which embodies the often competing issues of international and national environmental protection and conservation, human rights and economic development. At the global level, the North-South(2) dynamic has been an inherent component of these scholarly, political and economic discussions, most of which have examined or sought to achieve international consensus on the accommodation of what is fair, just and equitable. The task has not been an easy one, to say the least.

One approach has involved the examination and development of a right to environment from a human rights perspective in an attempt to formulate further the international environmental law paradigm which is now inherently interwoven with sustainable development principles. Notwithstanding this valiant and on-going attempt to integrate environmental protection objectives with human rights principles, this paper considers the extent to which the collective human right to development is found in the international environmental law context of sustainable development.

With the aim of continuing and expanding the discussion on sustainable development, this paper focuses on the extent to which specific human rights are integrated into three of the texts that emerged out of the United Nations Conference on the Environment and Development (Rio de Janeiro, June 1992) ("UNCED")(3). It is a departure from current analytical approaches which have defined the existence of environmental human rights within the context of the existing human rights regime. Specifically this paper examines some of the right to development provisions of the Rio Declaration, the Convention on Biological Diversity ("CBD") and the United Nations Framework Convention on Climate Change ("UNFCCC"). These collective human rights provide another dimension to environmental protection that is at the core of sustainable development. Both the right to environment and the right to development find their bases in human rights. Both speak to human dignity and the quality of life.

First, Part II of this article examines the development and existence of the right to environment. Its evolution is inherently based upon human rights principles and norms. Its current anthropocentric characterization is not without its opponents who argue in favor of a more ecocentric focus.

Next, Part III explores the evolution of the right to development. As with the right to environment,(4) the right to development is inherently interwoven with human rights considerations, and is ultimately integrated into sustainable development instruments that strive to meet environmental protection and economic development objectives in a fair and equitable way. This part surveys relevant documents, including the Universal Declaration of Human Rights, the United Nations' New International Economic Order ("NIEO") resolutions, the Stockholm Declaration and the UNCED texts, all of which reflect the evolution of the intersection of human rights, the right to development and environmental protection.

Finally, Part IV examines the common goals of international environmental protection, economic development and human rights. It is precisely these linkages that provide a positive and optimistic perspective to the outcomes of UNCED and in the end, another basis for the hopeful furtherance of, and commitment to, the global equity that is the fundamental promise of sustainable development.

II.

ENVIRONMENTAL HUMAN RIGHTS AND THE RIGHT TO ENVIRONMENT

1. Human Rights Linkages

   Although the "international community has already spilled much ink and consumed forests of paper developing" environmental instruments which hold substantial promise for alleviating some environmental problems, those instruments have not done enough.(5) In acknowledging this limitation, several approaches have emerged that link human rights and environmental protection.(6) It has been stressed that just as environmental law derives from the common interest of mankind, so does the international recognition of human rights and freedoms.(7) In general, this linkage focuses on "whether international human rights law can contribute to environmental protection, or conversely, whether international environmental policies can serve human rights concerns."(8) One perspective is that it is this overlapping relationship that circumscribes the emergence of a "clearly and narrowly defined international human right to a safe and healthy environment."(9) Another perspective is that the right to a healthful environment proceeds out of the international law of human rights itself.(10)

   One commentator asserts that this right is now a part of existing human rights law,(11) and is in fact is well -- advanced.(12) If, this right to environment is so well-advanced, what is it? What are its dimensions? Notwithstanding problems of precision,(13) along with the existence of persuasive arguments that present formulations "are too vague and general in terms of their content, scope and enforceability,"(14) the right to environment has emerged in many human rights documents, as discussed below. It began through attempts to link environmental concerns, both specific and general, with existing international human rights such as the rights to life, health, and an adequate standard of living.(15) In general, and with limited exceptions, an environmental human right is essentially an anthropocentric concept, to the extent that environmental protection serves solely human interests.(16)

   International human rights law offers a functional purpose. In responding "to threats to human dignity and existence by upholding the fundamental, immutable foundations of human rights," international human rights law shields the individual from the ordinary political process and thus significantly limits the "political will of a democratic majority as well as dictatorial minority."(17)

   Concomitantly, to the extent that "the ultimate aim of environmental protection remains anthropocentric,"(18) environmental human rights cut across the spectrum of human rights and include civil, cultural, economic, political and social rights of both a positive and a negative character.(19) Ultimately, it is argued, the right to a healthful environment is rooted in the right to an acceptable quality of life, which, in certain circumstances, extends to the right to life itself, the central core of human rights.(20) This being the case, the right to environment can find a place as a "first-generation" right, as a "second-generation" right, and also as a "third-generation" right, each of which coexist and interact.(21)

   Further, as with all human rights, an essential aspect of protecting one's right to the environment involves the creation of procedures that permit ensuring respect for these rights.(22) Thus, "environmental rights, understood as procedural guarantees of information and political participation which have been reformulated and extended specifically to cover environmental decisions, can effectively protect the environment only if coupled with substantive international regulation."(23) In other words, procedural rights are necessary for the full realization of substantive rights in that they represent the building blocks for democracy; they are enabling rights for the facilitation of other environmental human rights.(24)

   At the global level, where do we find the right to environment?

   Out of the 1972 United Nations Conference on the Human Environment ("Stockholm Conference"), emerged a clear, express linkage between human dignity and environmental quality.(25) Principle 1 of the Stockholm 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. In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.(26) The Stockholm Declaration established the relationship between the quality of the environment and the realization of fundamental human rights. It contemplates the quality of the environment as a necessary condition, even "essential," to the dignity and well-being of humans.(27)

   Evolving from the Stockholm Declaration, several international and regional human rights instruments adopted since 1980 have included various statements of a right to environment.(28) Legal provisions with a mandatory character have appeared in a very significant way in conventions aimed at the protection of economic, social and cultural rights. Article 24 of 1981 African Charter of Human and Peoples' Rights(29) expressly recognizes the rights of "all peoples" to a "generally satisfactory environment favorable to their development."(30) Likewise, Article 11 of the Protocol of San Salvador(31) provides that "Everyone shall have the right to live in a healthy environment and... State Parties shall promote the protection, preservation and improvement of the environment."(32) This right is also expressed in national legislation as well.(33)

   In 1987 the World Commission on Environment and Development ("the Brundtland Commission") specifically called for recognition of an environmental human right within a new charter for the environment, proposing that "all human beings have the fundamental right to an environment adequate for their health and well-being."(34)

   "Within the United Nations framework, human rights instruments have stopped short of declaring an [express] right to environment,"(35) yet contain provisions that implicate a healthy environment. Among these...