The Enforcement of Environmental Law From a Human Rights Perspective
| Author | Romina Picolotti/Sofia Bordenave |
| Position | Director Access to Justice Program Center Human Rights/Masters degree International Public Law |
| Pages | 04 |
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The objective of this article is to link the environment and human rights at the level of domestic enforcement on the part of States. We start from the basis that human rights law provides substantive and procedural elements as well as institutional mechanisms that can be incorporated by environmental law with a view to achieving effective environmental protection.
Even though the protection of the environment has been consecrated in a number of international instruments and universal recognition has been achieved concerning the need to act in certain areas to prevent the destruction of the Earth, this protection has been based more on rhetoric and good will rather than on enforceability. International environmental law has not provided the mechanisms necessary for individuals to legally claim the fulfillment of the obligations assumed by States in environmental treaties. We understand by environmental enforcement, the ability to claim before a judge the fulfillment of obligations and the realization of rights that concern the protection of the environment.
For its part, international human rights law has made significant advances with respect to enforcement. International justice forums have been created where individuals may demand that States fulfil their obligations and achieve realize rights found in human rights treaties. Likewise, international human rights law has succeded in penetrating the domestic legislation of States through legislative reforms that recognize and promote its application by local tribunals.
Environmental and human rights law have essential points in common that enable the creation of a field of cooperation between the two1:
- Both disciplines have deep social roots; even though human rights law is more rooted within the collective consciousness, the accelerated process of environmental degradation is generating a new "environmental consciousness".
- Both are purposeful legal systems with objectives of universal consent and of variable content, open to reality and social changes. The contents of both disciplines need be adapted to dynamic social processes, their normative corpus must meet the needs of each social era, with the objective of fulfilling its protective ends.2Page 12
- Internationalization. The international community has assumed the commitment to observe the realization of human rights and respect for the environment. Since the Second World War3, the relationship beteween the State and individual has become pertinent to the international community. On the other hand, the phenomena brought on by environmental degradation trascends political boundaries and is of critical importance to the preservation of world peace and security. The protection of the environment is internationalized, while the State-Planet Earth relationship becomes a concern of the international community.
- Universalization. Both areas of law tend to universalize their object of protection. Human Rights are presented as universal and the protection of the environment appears as everyone?s responsibility.
The advancement of the relationship between human rights and the environment would enable the incorporation of human rights priciples within an environmental scope, such as anti-discrimination standards, the need for social participation, protection of vulnerable groups, etc. At the same time, the human rights system would be stregthened by the incorporation of environmental concerns, enabling the expansion of the scope of human rights protection and generation of concrete solutions for cases of abuse.4 Finally, one of the most important consequences, is to provide victims of environmental degradation the possibility to access to justice. Given the present absolute helplessness felt by victims of environmental degradation, linking human rights and the environment brings these victims closer to the mechanisms of protection that are provided for by human rights law.
In actuality, the linkage between human rights and the environment reveals itself clearly and irrefutably. Environmental degradation severely affects the use and enjoyment of most internationally recognized human rights. Thus, for example, the right to life and to health, are critically affected by problems of environmental degradation,5 the right to equality before the law is affected by the disproportionate way in which certain elements of the population bear environmental burdens, and environmental discrimination. The right to work is also affected by environmental conditions in the work place. In addition, the right to property is affected by environmental degradation, etc.6
Experience in the human rights arena has shown that the way to make rights effective is to promote their enforcement. It is timely to consider what elements made possible advances in human rights enforcement and whether these can be applied to environmental law.
The first element stems from the recognition that human rights are fundamental rights: the possibility of social cohabitation is given by the existence of norms and principles that imply the conception of immutable values, of limits that cannot be transgressed, of norms that are internalized within the collective consciousness as unyielding pillars not subject to controversies. Human rights are the trustees of this solid normative nucleus.
The second is the general consent with regard to these rights, which crystallize legally on an international scale through treaties and declarations with universal vocation and their hierarchical constitutional incorporation into the domestic judicial systems of States.
The third element resides in the possibility given individuals to access justice and seek enforcement of human rights norms and the application of specific substantive and procedural human rights principles in concrete cases. This access to justice is in itself a human right, of which people cannot be deprived.
When these elements of enforcement are applied to the scope of environmental law, it is possible to sustain, with regard to the first of these elements, that the environmental crisis threatens the viability and quality of life on the planet. The fundamental nature of this problem is irrefutable. This has generated the universal consent necessary to elevate the protection of the environment before international public law. Hence, the right to a healthy environment is beginning to be recognized as a human right.7
The second element pertaining to enforcement of human rights appears in environmental law in the sense that, most constitutions that have been recently reformed incorporate the protection of the environment, hence, assigning this protection constitutional hierarchy.8
It is the third element, dealing with access to justice that has not yet been completed in the area of environmental law; it prevents its enforcement, and thus, the full force and effectiveness of environmental law. The Role Played by the Individual in the Enforcement of Environmental Law
The protection of the environment exceeds in many instances, the capability of States' administrative structure, which is why it requires that individuals assume the role of monitoring and protecting rights as well as duties.
The essential role of the individual resides in their ability to make environmental law enforceable. This not only promotes but also realizes protective legal action. Given the destruction or the imminent destruction of the environment that surrounds the individual, the individual aware of the vertiable force that he/she posseses finds himself/herself compelled and motivated to take action.
It is no small task to clarify the role of the individual, therefore we will analyse what is the object of protection and what is the practical implication of the exercise of this role.
The protection of the environment can be the product of actions that are aimed at preventing or repairng damages caused to an individual or group, or actions that are intended to safeguard collective interests based on the right to a healthy environment.
In the first case, there are directly affected persons suffering a detriment to their rights due to environmental problems; in the second, the environment is protected as a public good, and because it is of social interest.
Therefore, when we refer to environmental protection, we face two legal objects that are interdependent: on the one hand, the environment as an autonomous legal object that can be protected, and on the other, the scope of human rights that are affected by environmental damage or degradation9. As individuals we have two objects to protect: the environment as Page 13 an autonomous legal object and the human being10. The interdependence is clear, since the final object of protection is always the human person, environmental law naturally integrates with human rights law.
We now seek to elucidate the second question, that is, what is the practical implication of exercising the individual's role of protecting the environment?
It is impossible for the individual to perform his/her role if he/she is not complemented by specific duties imposed on persons or agents to ensure their execution. If there are no defined duties imposed on specific persons to ensure access to justice in environmental matters, then the individual's role dissipates.
The individual's task will not be fulfilled if the State does not implement appropriate and effective mechanisms to access justice. This is what Kant defined as "the perfect duty", contrary to "the imperfect duty" which is general, ambiguous and non-compulsive. The current vision of environmental law generates imperfect duties. An integral vision that links these duties with the concept of access to justice contained in human rights law is what will enable us to move from imperfection to perfection or, in other words, from the lack of enforcement to the achievement of enforcement. 11
The effectiveness of environmental law treaties depends to a large extent on the impact that they have on the domestic law of the party States. The party States have the obligation, emanating from a general principle of international law, to take all measures necessary to ensure the effective protection of the rights consecrated in these treaties.
Yet, the fulfillment of the individual's role of protecting the environment depends not only on already existing constitutional or legislative provisions, but also requires that States train individuals under their jurisdiction on the exercise of this role, and take legislative and administrative measures in ways to eliminate obstacles, gaps, and facilitate access to justice.
Limited enforcement action at the local level and a lack of effectiveness puts us on the alert with regard to the utilization of existing procedural tools on the part of the individual and highlights the need to create new tools. Proper, adequate, efficient, and innovative procedural instruments suitable for preserving the environment, sanctioning abusive attitudes concerning the environment, and imposing an integral remedy for damage caused are required. There is a need for tools that will be used against inoperative, negligent or accomplice States and against particular irresponsable contaminators. We must make available prompt, simple actions that will work to prevent environmentally destructive behavior. These mechanisms must incorporate the principles of active legitimacy (legal capacity), burden of proof, and the precautionary principle, etc. In short, actions are needed that ensure the human right of the individual to access justice in environmental cases.
Finally, we recall that the fulfilment of the State obligation to provide adequate and effective procedural tools in the environmental field generates the liability of the State for the violation of human rights that compose the concept of access to justice at an international level. This opens a new field of enforcement in environmental law and its victims against States, namley international and regional systems of human rights protection.
For more information on the Center for Human Rights and the Environment see: www.cedha.org.ar
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[1] See A.A. Cancado Trindade, The Parallel Evolutions of International Human Rights Protection and Environmental Protection and the Absence of Restrictions upon the Exercise of Recognized Human Rights, Inter- American Institute of Human Rights Magazine, January-June 1991.
[2] Alexandre Kiss, Définition et nature juridique d'un droit de l'homme à l'environnement, en Environnement et droits de l'homme, Pascal Kromarek, directrice de publication, 1987.
[3] Michael J. Kane, Promoting Political Rights to protect the Environment, 18 Yale J. Int'l L., 389,389-390 (1992).
[4] Michael R. Anderson, Human Rights Approaches to Environmental Protection: An Overview in .Alan E. Boyle & Michael R. Anderson, Eds., Human Rights Approaches to Environmental Protection 1-4, 21-23 (1996).
[5 ] It has been estimated that roughly 60 per cent of the global burden of disease from acute respiratory infections, 90 per cent from diarrhea disease, 50 per cent from chronic respiratory conditions and 90 per cent from malaria could be avoided by simple environmental interventions. World Health Organization., Health and Environment in Sustainable Development: Five Years after the Earth Summit (1997).
[6] Judge Weeremantry from the International Court of Justice makes a reflection in this vain:The protection of the environment is ... a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments. Gabcikovo-Nagymaros Case (Hungary-Slovakia), ICJ, Judgment of Sept. 25, 1997 (Sep. Op. Judge Weermantry) at 4.
[7] The Additional Protocol to the American Convention on the matter of Economic, Social, and Cultural Rights "Protocol of San Salvador "in force since December 16 of 1999, in its article 11 recognizes: "1.Every person has the right to live in a healthy environment and to be provided with basic public services. 2. The State parties will promote the protection, preservation, and improvement of the environment." The African Charter of Human Rights, in force since 1986, in its article 24 recognizes: "every person has the right to a satisfactory and favourable environment for his development" la traducción nos pertenece.
[8] This is reflected in most of the constitutions in the region that recognize the importance of the environment: constitution of Bolivia of 1967 (article 137), constitution of Brazil of 1988 (article 225), constitution of Chile of 1980 (article 19), constitution of Colombia of 1991 (articles 8,49, 79,80,86, and 88), constitution of Cuba of 1992 (articles 11 and 27), constitution of El Salvador of 1983 (article 69), constitution of Ecuador of 1983 (article 19), constitution of Guatemala of 1985 (article 97), constitution of Guyana of 1980 ( articles 25 and 36), constitution of Haiti of 1987 (articles 253 and 258), constitution of Honduras of 1982 (article 145), constitution of Mexico of 1917, (article 25), constitution of Nicaragua of 1987 (articles 60 and 102), constitution of Panama of 1980 (article 110), constitution of Paraguay of 1967 (article 132), constitution of Peru of 1993 (article 2 inc. 22), constitution of Uruguay of 1997(article 47), constitution of Costa Rica (articles 46 and 50).
[9] In this last object of protection, the concept of traditional victim acquires greater strength.
[10] When he refers to the expression 'green men' Jury Moisset Iturraspe states: "it is one of the many manichean expressions referred to further. The green man, advocate of a healthy environment -and fighter on behalf of this cause -, consisted initially of only a few, who fell into extremisms and were accused of unrest; today, intelligent persons from all over the world comprise a new legion of green men" J. Mosset Iturraspe, T. Hutchinson, E.A. Donna, Daño Ambiental, Tomo I, Eds. Rubinzal-Culzoni, Introduction, page. 13, note 1. [translated from Spanish]
[11] The particular characteristics of environmental problems make clarification necessary: enforcement does not only imply the creation of procedural paths but also the application of principles of environmental law that will make protection effective.
