Human rights and the environment: what specific environmental rights have been recognized?

• Author: Shelton, Dinah
• Position: Updating International Nuclear Law

As early as the 1972 Stockholm Conference on the Human Environment, efforts were made to explore and attempt to understand the interrelationship between human fights and environmental protection. Preparations for the Stockholm Conference coincided with the 1968 United Nations Teheran Conference on Human Rights, the first international conference organized by the United Nations, and marking the twentieth anniversary of the adoption of the Universal Declaration of Human Rights. The Teheran Conference, overcoming a long-standing political debate that led to the adoption of two human rights covenants (1) rather than a single instrument, proclaimed that all human rights are interdependent and indivisible, opening the door for consideration of complex issues like environmental fights. The Teheran Conference also addressed concerns about economic development and human fights, proclaiming the interdependence of peace, development and human rights. (2) Resource depletion fit within this agenda and stimulated interest among developing states in the Stockholm Conference, which culminated in the Declaration recognizing environmental protection as a pre-condition for the enjoyment of many human rights. (3) Almost twenty years after the Stockholm Conference, in resolution 45/94, the UN General Assembly recalled the language of the Stockholm Declaration, stating that it:

Recognizes that all individuals are entitled to live in an environment adequate for their health and well-being; [and] [c]alls upon Member States and intergovernmental and non-governmental organizations ... to enhance their efforts towards ensuring a better and healthier environment. (4) There is a substantial practical reason for emphasizing international human fights law. For those whose well-being suffers due to environmental degradation, human fights law currently provides the only set of international legal procedures that can be invoked to seek redress for harm that is the consequence of an act or omission attributable to a state. The inclusion of inaction is significant because most environmental harm is due to non-state activity. Human fights law makes clear that while its primary objective is to protect individuals from abuse of power by state agents, including legislative representatives of the democratic majority, each state is also obliged to exercise due diligence to ensure that human rights are not violated by non-state actors. Due diligence requires measures to prevent abuses where possible, investigate violations that occur, prosecute the perpetrators as appropriate, and provide redress for victims. Thus, while no international human rights procedure allows a direct action against private enterprises or individuals who cause environmental harm, a state allowing such harm may be held accountable, as the following discussion indicates (litigation can be commenced in certain instances against non-state actors in national courts, for example under the Alien Tort Statute, 28 U.S.C. [section] 1350 (2006)).

1. INTRODUCTION: INTER-RELATING HUMAN RIGHTS AND ENVIRONMENTAL PROTECTION

   From Stockholm to the present, most advances in developing environmental rights have occurred first, and almost exclusively, at the regional level. Four principal and complementary approaches have emerged to characterize the relationship between human fights and the environment:

   1. International environmental laws incorporate and utilize those human rights guarantees deemed necessary or important to ensuring effective environmental protection.

   2. Human rights law re-casts or interprets internationally-guaranteed human fights to include an environmental dimension when environmental degradation prevents full enjoyment of the guaranteed rights.

   3. International environmental law and international human rights law elaborate a new substantive right to a safe and healthy environment.

   4. International environmental law articulates ethical and legal duties of individuals that include environmental protection and human fights.

   The first approach selects from among the catalogue of human rights those fights most relevant to the aims of environmental protection, independent of the utility of environmental protection to the enjoyment of the full human fights catalogue. The approach thus emphasizes procedural fights such as freedom of association, which permits the existence and activities of non-governmental environmental organizations, and the right of access to information concerning potential threats to the environment, which may be used for nature protection not necessarily related to human health and well-being. The potential for improving environmental protection through effective guarantees of procedural rights is solid, but the absence of complaint mechanisms or other recourse in international environmental agreements is a limiting aspect. (5)

   In contrast, human rights law seeks to ensure that environmental conditions do not deteriorate to the point where the substantive right to life, the right to health, the right to a family and private life, the right to culture, and other human rights are seriously impaired. As Judge Weeremantry of the International Court of Justice expressed it:

   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 (emphasis added). (6) With a focus on the consequences of environmental harm to existing human rights, this approach serves to address most serious cases of actual or imminently-threatened pollution. The primary advantage over the first approach is that existing human rights complaint procedures may be employed against those states whose level of environmental protection falls below that necessary to maintain any of the guaranteed human rights. Using existing human rights law has its own limits, however, because it cannot easily resolve threats to other species or to ecological processes if these are not directly and immediately linked to human well-being. The third possibility is to formulate a new human right to an environment that is not defined in purely anthropocentric terms, an environment that is safe not only for humans, but one that is ecologically-balanced and sustainable in the long term. Some international success has attended the various efforts undertaken in this direction, as discussed below. (7) The notion of a right to environment has met resistance from those who claim that the concept cannot be given content and who assert that no justiciable standards can be developed to enforce the right, because of the inherent variability of environmental conditions. (8)

   Finally, the fourth approach prefers to address environmental protection as a matter of human responsibilities rather than fights. Draft declarations of human responsibilities such as the Earth Charter focus on duties toward the environment. (9) Many proponents of this approach posit ecological rights or rights of nature as a construct to balance human rights, attempting to introduce ecological limitations on human rights. "The objective of these limitations is to implement an eco-centric ethic in a manner which imposes responsibilities and duties upon humankind to take intrinsic values and the interests of the natural community into account when exercising its human rights." (10)

   This paper provides a current assessment of environmental rights. It discusses how environmental law has encompassed procedural human rights and how human fights law recognizes the consequences of environmental degradation on the enjoyment of human rights. The merger of the two fields through elaborating a human right to the environment is then considered, as well as the special recognition given the fights of indigenous peoples.

2. PROCEDURAL ENVIRONMENTAL RIGHTS

   The lack of state support at the Stockholm Conference for pronouncing a substantive right to environment (proposed by the United States) led scholars (11) and activists during the following decade to consider human rights in a more instrumental fashion, to give content to environmental fights by identifying those fights whose enjoyment could be considered a prerequisite to effective environmental protection. They focused in particular on the procedural rights to environmental information, public participation in decision-making and remedies in the event of environmental harm. Various international instruments, particularly in Europe, built upon this concept to give content to Stockholm Principle I. (12)

   The texts adopted in connection with the United Nations Conference on Environment and Development ("UNCED") contain few references to human rights. Working Group III of the UNCED Preparatory Committee considered numerous proposals to include a right to a healthy environment in the Rio Declaration. In the final meetings prior to Rio, however, the participants failed to reach consensus on including such a right.

   The Rio Declaration states that human beings are "entitled to a healthy and productive life in harmony with nature." (13) The Rio Declaration accepts the importance of a role for the public, but--consistent with its avoidance of rights language--calls for including it on the ground of efficiency: "Environmental issues are best handled with the participation of all concerned citizens at the relevant level" (Principle 10). Principle 10 adds that:

   [E]ach individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and...