HUMAN RIGHTS AND ENVIRONMENT: THE ENTWINED By - Lakshmy S
HUMAN RIGHTS AND ENVIRONMENT: THE
ENTWINED[1]
Authored By - Lakshmy S
INTRODUCTION
Humankind all over the world is
facing environmental problems. It affects their basic rights. Human rights and
environment protection are inseparable. Human rights include right to life. To
live in a healthy environment is a part of right to life. It is true that
international human rights law doesn’t recognise a separate right to healthy
environment, yet almost all human rights institutions now recognise that
environmental degradation can lead to infringement of basic human rights. We
can feel the oneness in human rights and environmental protection as each and
every individual is entitled to it without distinction of any kind such as
race, colour, sex, status, etc. It is not the concern of people of a particular
country or group of countries. It is a common concern which lies beyond the
national boundaries. There are many international treaties and covenants are
here in this field to protect the human rights and the environment.
The other aspect is that the
environment should be protected without conquering development. Development
includes economic development. It is a part of human development. Indirectly it
can be related to right to work, free choice of employment, protection against
unemployment, etc and which are a part of economic and social rights. Hence as
this provision exists, we have to look into the possibility that human rights
in the name of development and it may dominate provisions for environment
protection.
CONTENT
CONVENTIONS
International concerns with human
rights, health and environmental protection have expanded considerably in the
past several decades. In response, the international community has created a
vast array of international legal instruments, specialized organs, and agencies
at the global and regional levels to respond to identified problems in each of
the three areas. Often these have seemed to develop in isolation from one
another. Yet the links between human rights, health and environmental
protection were apparent at least from the first international conference on
the human environment, held in Stockholm in 1972. Indeed, health has seemed to
be the subject that bridges the two fields of environmental protection and
human rights.[2]
The relationship between human rights
and the environment was first recognized by the UN General Assembly in the late
1960s. In 1972, the direct relationship between the environment and the right
to life was recognized by the United Nations Conference on the Human
Environment.[3] Concerned
with trans-boundary pollution, particularly in the form of acid rain, Sweden in
1968 proposed an international conference to address global environmental
problems. In announcing the 1972 UN Conference on the Human Environment in
Stockholm (the “Stockholm Conference”), the UN General Assembly stated that the
“main purpose” of the conference was to serve as a practical means to encourage
and provide guidelines for action by Governments and international
organizations designed to protect and improve the human environment.[4]The
Preamble stated that “Man is both creator and moulder of his environment, which
gives him physical sustenance and affords him the opportunity for intellectual,
moral, social and spiritual growth. In the long and tortuous evolution of the
human race on this planet a stage has been reached when, through the rapid
acceleration of science and technology, man has acquired the power to transform
his environment in countless ways and on an unprecedented scale. Both aspects
of man’s environment, the natural and the man-made are essential to his
well-being and to the enjoyment of basic human rights even the right to
itself.”[5]
Further the declaration established a link between human rights and
environmental protection by stating 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.”[6]
In 1992, the United Nations
Conference on Environment and Development (also known as the Earth Summit)
stated 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.” The Declaration also provided for the right of access to environmental
information and of public participation in environmental decision making. In 2002, the World Summit on Sustainable
Development merely acknowledged the position that there exists a possible
relationship between environment and human rights.[7]
The World Commission on Environment
and Development (the Brundtland Commission), 1987 brought the term ‘sustainable
development in common use. It was based
on the theme ‘our common future’. The Brundtland report not only given a
comprehensive definition of sustainable development, but also provides rights
and responsibilities for environmental protection, which includes fundamental
human rights. It states that all human beings have the fundamental right to an
environment adequate for their health and well-being. It also deals with
‘inter-generational equity’. It implies that states shall conserve and use the
environment and natural resources for the benefits of present and future
generations. Human rights are always to be protected so here it is concerned
not only about the human rights of present generation but also of the future
generation.
Dominic MCGoldrick has suggested that
sustainable development can structurally conceived as having a pillared temple.
There are three pillars which are composed of international environmental law,
international human rights law and international economic law.[8] So
international human rights law is a part of sustainable development.
The Rio Declaration on Environment
and Development, 1992 also recognised human rights as part of sustainable
development. According to principle 1 of the declaration, ‘human beings are at
the centre of concerns for sustainable development. They are entitled to a
healthy and productive life in harmony with nature.
Agenda 21 which is a voluntary action
plan also recognises the entwined nature of human rights and environmental
protection. Boutros Ghali (UN General Secretary at that time) in his opening
address to the UN General Assembly in September, 1992 said that Agenda 21 is a
“comprehensive and far reaching programme for sustainable development and it
constitutes the centrepiece of international co-operation and co-ordination
activities within the United Nations system for many years to come.”
The preamble of agenda 21 states that
“humanity stands at a defining moment in history. We are confronted with a
perpetuation of disparities between and within nations, a worsening of poverty,
hunger, ill-health and illiteracy and the continuing deterioration of the
ecosystems on which we depend for our well-being. However, integration of
environment and development concerns and greater attention to them will lead to
the fulfilment of basic needs, improved living standards for all, better
protected and managed eco systems and a safer, more prosperous future. No
nation can achieve this on its own; but together we can in a global partnership
for sustainable development.”[9]
In agenda 21’s socio-economic
dimensions, it includes sustainable development eradication of poverty,
protection and promotion of human health, which are the basic human rights.
It also focuses on strengthening the
role of major groups. It provides for global action for women towards
sustainable and equitable development, children and youth in sustainable
development, recognising and strengthening the role of indigenous people and
their communities, strengthening the role of workers and their trade unions,
strengthening the role of farmers, etc.[10] Hence it recognises a major group whereas
human rights conventions protect vulnerable also. It gives special focus on
them as they are facing many challenges and many of their rights are getting
violated. The idea behind it is to bring the unequal up with the equals and
make everyone equal. Vulnerable group includes children, women, refugees,
workers, persons with disabilities, certain indigenous people, etc. Here in
Agenda 21, the vulnerable group is known or considered as the major group.
Vienna Conference on Human Rights,
1993 which aimed to make out a common plan for the strengthening of human
rights work around the world, recognises ‘right to development’ as a human
right. It affirms that right to development is a universal and inalienable
right and an integral part of fundamental human rights. Whereas many
international conventions and covenants in the field of environmental
protection recommends that development and environment protection go hand in
hand.
Even United Nations Human Rights
Commission accepted that human rights and environment protection are part of
sustainable development.[11]
It states that “recalling the
extensive work, reports and resolutions adopted by the Commission and human
rights treaty bodies on issues relevant to environmental protection and
sustainable development, also recalling the Declaration of the United Nations
Conference on the Human Environment of 1972 (Stockholm Declaration) (A/CONF.48/14/Rev.1
and Corr.1), the Rio Declaration on Environment and Development (A/CONF.151/26/Rev.1,
vol. I and Corr.1), Agenda 21, adopted on 14 June 1992 by the United Nations Conference
on Environment and Development and the Johannesburg Declaration on Sustainable
Development (A/CONF.199/20 and Corr.1, chap. I, resolution 1, annex) and the Plan
of Implementation of the World Summit on Sustainable Development (ibid.,
resolution 2, annex), adopted in September 2002, and welcoming all efforts, at
the national, regional and international levels, towards their implementation. Bearing
in mind the goals and targets of the United Nations Millennium Declaration and
the United Nations overarching agenda, including poverty eradication, human
rights, sustainable development and peace-building, Conscious of the mandate of
the Commission on Sustainable Development to promote the implementation of
Agenda 21 and the follow-up to the World Summit on Sustainable Development, as
well as of the important work undertaken on environment issues by the United
Nations Environment Programme and other relevant forums, taking note that
respect for human rights can contribute to sustainable development, including
its environmental component, considering that environmental damage, including
that caused by natural circumstances or disasters, can have potentially
negative effects on the enjoyment of human rights and on a healthy life and a
healthy environment, considering also that protection of the environment and
sustainable development can also contribute to human well-being and potentially
to the enjoyment of human rights, recalling that everyone has the right to
enjoy the benefits of scientific progress and its applications, as reflected in
article 27 of the Universal Declaration of Human Rights and article 15 of the
International Covenant on Economic, Social and Cultural Rights, welcoming
actions taken by States, such as legal measures and public awareness activities,
that promote and protect human rights and that also assist in the promotion of environmental
protection and sustainable development, Reaffirms that peace, security,
stability and respect for human rights and fundamental freedoms, including the
right to development, as well as respect for cultural diversity are essential
for achieving sustainable development and ensuring that sustainable development
benefits all, as set forth in the Plan of Implementation of the World Summit on
Sustainable Development.”[12]
It also puts obligation upon the states to o take all necessary measures to
protect the legitimate exercise of everyone’s human rights when promoting
environmental protection and sustainable development and reaffirms, in this
context, that everyone has the right, individually and in association with
others, to participate in peaceful activities against violations of human
rights and fundamental freedoms. It also stresses the importance for States,
when developing their environmental policies, to take into account how
environmental degradation may affect all members of society, and in particular
women, children, indigenous people or disadvantaged members of society,
including individuals and groups of individuals who are victims of or subject
to racism, as reflected in the Durban Declaration and Programme of Action
adopted in September 2001 by the World Conference against Racism, Racial
Discrimination, Xenophobia and Related Intolerance (A/CONF.189/12 and Corr.1).[13]
It is evident that latest trend is
that human rights commission directly working on the entwined nature of human
rights and environmental protection.
The human rights that are directly
affected by the state of the environment consist but are not limited to the
following: The right to life, the right to an adequate standard of living and
the right to health. Also, procedural human rights such as access to
information and participation in decision making are connected to the right of
citizens and communities to partake in the formulation of environmental
policies.[14]
The Right to Life: On several
occasions, environmental destruction would ultimately result in the curtailment
of the right to life.
The Right to Health: Article 12 of
the International Covenant on Economic, Social and Cultural Rights states that
“The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of the highest attainable standard of physical and mental
health.” Article 2(b) therein provides that “The steps to be taken by the
States Parties to the present Covenant to achieve the full realization of this
right shall include those necessary for the improvement of all aspects of
environmental and industrial hygiene.” The right to health includes an array of
factors that contribute to a healthy life. The Committee on Economic, Social
and Cultural Rights, the body responsible for monitoring the International
Covenant on Economic, Social and Cultural Rights refers to these as the
“underlying determinants of health”. They include, amongst others healthy
environmental conditions.[15]
The Rights of the Child (Right to
Health): Article 24 of the Convention on the Rights of the Child, 1989 deals
with the right of the child to the enjoyment of the highest attainable standard
of health and to facilities to the treatment of illness and rehabilitation of
health.[16]
Article 24(c) provides that States Parties shall pursue full implementation of
this right and, in particular, shall take appropriate measures to combat
disease and malnutrition taking into consideration the dangers and risks of
environmental pollution.”
In addition, The Committee on
Economic, Social and Cultural Rights has underlined that States must protect environment
against pollution or contamination by private companies and assess their impact
on the environment.[17]
In 1994 the forty-sixth session of
the Commission on Human Rights (Sub-Commission on Prevention of Discrimination
and Protection of Minorities) received a report entitled ‘Review of Further
Developments in wields with which the sub-commission has been concerned on
human rights and the environment. This was the Final Report prepared by Mrs.
Fatma Zohra Ksentini, the Special Rapporteur on this issue appointed in 1989.
Mrs. Ksentini work focused initially on the issue of toxic wastes and dumping
of these wastes in poorer nations (an issue which was high on the international
agenda in the late 1980s). Her work broadened during the research on this and
became a major overview of environmental rights.[18]
The final report included a full
analysis of environmental rights and legislation at a national level. The
report also suggested that: for many years environmental problems were almost
exclusively considered from the standpoint of the pollution in one part of the
world, i.e. the industrialized countries (Immediately after the Stockholm
Conference, perception of environmental problems was limited to a specific
geographical area, the industrialized countries, and reduced to the simplest of
terms, pollution. It identified the need for new approaches to these problems.[19]
Human rights includes political
rights. Environmental rights also include political rights like rights for
indigenous peoples and other collectives, the right to information and participation
in decision-making, freedom of opinion and expression, and the right to resist
unwanted developments. The right to claim reparations for violated rights,
including rights for climate refugees and others displaced by environmental
destruction, the right to claim ecological debt, and the right to environmental
justice. Many of these rights, particularly the political ones, are
well-established and enshrined in various conventions and agreements. We can
credit the establishment of some of these rights, as well as the acceptance of
others that are not yet legally recognised, to the ongoing struggles of
communities and indigenous peoples around the world. All of these rights are
equally important, and they are all interdependent. Environmental rights are
human rights, as people's livelihoods, their health, and sometimes their very
existence depend upon the quality of and their access to the surrounding
environment as well as the recognition of their rights to information,
participation, security and redress.[20]
From all these we can understand that
environmental human rights includes;
·
The
right to a clean and safe environment
·
The
right to act to protect the environment
·
The
right to information participate in decision-making Different organisations
across the world are approaching these issues in their own ways, but there are
some commonalities:
·
The
right to a clean and safe environment these are substantive rights. They are
the most basic rights, and the hardest to define. Many organisations would
support the idea that clean water and food security are basic human rights (quotes
from UNEP Geo 2000 report). The UN Draft Principles from 1994 (see Appendix)
spell out what these might be in more detail.
·
The
right to act to protect the environment. This right is inherent in the UN
Declaration and associated Conventions, through the right to organise and to
free assembly. This right is under threat in many nations. The Just Earth
campaign run by the Sierra Club and Amnesty International USA has highlighted
many such examples.
·
The
right to information, to access to justice, and to participate in environmental
decision-making these rights enable citizens to play an active part in creating
a healthy environment, and they are directly linked to the key points in
several UN Conventions and Declarations.[21]
In Europe these rights are enshrined
in the European Convention on Access to Information, Public Participation and
Access to Justice in Environmental Decision-Making, other regions will need to
consider how best to deliver these rights within local circumstances. These
rights do not exist in isolation: they cannot be seen as separate from other
human rights or from other issues linked to poverty, economic and social
exclusion.
A human rights perspective to
sustainable development moves from the traditional green issues to a wider
approach to protecting the most vulnerable in society. These rights can provide
a platform for environmental and sustainable improvements are likely to benefit
the most marginalised people, the poor, women, and minorities. The human rights
perspective facilitates policies that have a strong impact on poverty and
exclusion for reasons of gender or race. The right to information, justice and
participation within the sustainable development context includes rather than
excludes people who have felt excluded from the traditional green movement
agendas. Environmental human rights support a bottom up approach. Active
involvement and shared control, by the people and states most affected by a
degraded environment is fundamental at local, national and global levels.[22]
Human Rights and Environmental
Protection: India
Indian Constitution imposes certain
fundamental duties upon its citizen. It is the duty of every citizen to protect
environment. Article 51-A (g), recognises that ‘it shall be duty of every
citizen of India to protect and improve the natural environment including
forests, lakes, rivers and wild life and to have compassion for living
creatures.’
Article 47 provides that the State
shall regard the raising of the level of nutrition and the standard of living
of its people and the improvement of public health as among its primary duties.
The improvement of public health also includes the protection and improvement
of environment without which public health cannot be assured. Article 48 deals
with organization of agriculture and animal husbandry. It directs the State to
take steps to organize agriculture and animal husbandry on modern and
scientific lines. In particular, it should take steps for preserving and
improving the breeds and prohibiting the slaughter of cows and calves and
draught cattle. Article 48 -A of the constitution says that the state shall
endeavour to protect and improve the environment and to safeguard the forests
and wild life of the country.[23]
The Constitution of India under part
III guarantees fundamental rights which are essential for the development of
every individual and to which a person is inherently entitled by virtue of
being human alone. Right to environment is also a right without which
development of individual and realisation of his or her full potential shall
not be possible. Articles 21, 14 and 19 of this part have been used for
environmental protection.[24]
According to Article 21 of the
constitution, no person shall be deprived of his life or personal liberty
except according to procedure established by law. Article 21 has received
liberal interpretation from time to time after the decision of the Supreme
Court in Maneka Gandhi vs. Union of India, (AIR 1978 SC 597). Article 21
guarantees fundamental right to life. Right to environment, free of danger of
disease and infection is inherent in it. Right to healthy environment is
important attribute of right to live with human dignity.
The Stockholm Declaration of 1972 was
perhaps the first major attempt to conserve and protect the human environment
at the international level. The preamble of it states, 'the need for a common
outlook and for common principles to inspire and guide the peoples of the world
in the preservation and enhancement of the human environment.
As a consequence of this Declaration,
the States were required to adopt legislative measures to protect and improve
the environment. Accordingly, Indian Parliament inserted two Articles, i.e.,
48A and 51A in the Constitution of India in 1976.[25]
Article 253 of the constitution
specifically empowers the Parliament to make any law for the whole or any part
of the territory of India for implementing any treaty, agreement or convention
with any other country or countries or any decision made at any international
conference, association or other body.
Entries No.13 and 14 of the Union
list includes the subject matters over which the parliament can make laws,
provides participation in international conferences, associations and other
bodies and implementing decision made thereat and entering into treaties and
agreements with foreign countries and implementing of treaties, agreements and
conventions with foreign countries.[26]
In India a separate ministry namely
The Department of Environment was established in 1980 to ensure a healthy
environment for the country.
Coming to human rights, the preamble
of Indian constitution itself shows its aims and purposes. Through the
preamble, the people of India have resolved to secure all citizen the following
objectives;
·
Justice,
social, economic and political
·
Liberty
of thought, expression, belief, faith and worship
·
Equality
of status and opportunity
·
Fraternity
assuring the dignity of the individual and the unity and integrity of the
nation
Under UDHR, right to effective remedy[27]
is one among the civil and political rights. Under Article 32 of the Indian Constitution
the same right has been implemented. In case of violation of environmental
protection and preservation or any act which harms the environment and thereby
the bio-diversity, the people can opt the same provision. They can file a writ
petition or a Public Interest Litigation.
Role of Judiciary
Considering the role of judiciary in
this area is something which is inevitable. Article 21 is the heart of
fundamental rights and has received expanded meaning from time to time and
there is no justification as to why right to live in a healthy environment,
cannot be interpreted in it. For healthy existence and preservation of
essential ingredients of life, stable ecological balance is required. The
judicial grammar of interpretation has made ‘right to live in healthy
environment’ as the sanctum sanctorum of Human rights.[28]
History of Indian Judiciary shows
that the 1980s was a period where the Indian Judiciary became more liberal and
very creative. In the case of Rural Litigation and Entitlement Kendra vs. State
of Uttar Pradesh,[29]
the importance of air and water as the most indispensable gift of nature for
the preservation of life was discussed. The judges did not expressly discuss
Article 48A or Art 21. Still, this case is considered as the start of liberal
interpretation of Article 21.
The Supreme Court in Subhash Kumar v.
State of Bihar,[30] held
that Article 21 includes the right to a wholesome environment. They followed
the liberal thinking which started in the ‘Rural litigation case’ and had laid
down an expansive interpretation of the word “life” in Article 21 by including
environmental protection in Right to Life.
This position was again reaffirmed in
Virender Gaur v. State of Haryana,[31]
where it was held that enjoyment of life and right to live with dignity
includes the protection and preservation of the environment and without it,
life could not be enjoyed.
M. C Mehta v. Kamal Nath[32]
Supreme Court made it crystal clear
that any disturbance of basic environmental elements namely air, water and soil
which are necessary for life would be hazardous to life and can’t be polluted.
(Hotel was discharging effluent into river and hence causing disturbance to
aquatic life and water sanitation)
Preventing pollution of Ganga and
Yamuna[33]
Under the Environmental protection
Act, 1986 the Supreme Court asked for the removal of all polluting industries
settled on the bank of Ganga in Kanpur, Hoogly in Calcutta and of Yamuna in
Delhi.
P.A. Jacob v. Suprintendent of
police, Kottayam[34]
In this case the Kerela high Court
held that the freedom of speech does not include freedom to use loudspeakers or
sound amplifiers to cause noise pollution and risk to human health.
T.K. Koolwal v. State of Rajasthan[35]
The High court extended the right to
know to entitle a person to have complete information about the sanitation
programme of the municipal corporation. Hence, the citizens’ access to official
environmental information within reasonable limits is now a guaranteed right.
M.C Mehta v. Union of India[36]
The apex court directed certain
tanneries to stop functioning as they were discharging foul effluents without
setting up a primary treatment plant and held that “we are conscious that
closure of industries may bring unemployment, loss of revenue but life, health
and ecology have a greater importance to people”
Consumer Education and research forum
v. Union of India[37]
The court in this case took a view
that right to good health was an integral facet of meaningful right to life and
extended the right to robust health and vigor of the workers without the
workers would lead a life of misery.
Enjoyment of a pollution-free
environment is directly in relation to the quality of life. As the environment,
which includes natural resources, are essential for a healthy life, any
pollution or damage to the environment could have adverse effects on human
beings. This has been proven by various incidents that changed the
jurisprudence of environmental law in India.[38]
Sustainable Development
Sustainable development is the idea
that human societies must live and meet their needs without compromising the
ability of future generations to meet their own needs. The “official”
definition of sustainable development was developed for the first time in the
Brundtland Report in 1987.
Specifically, sustainable development
is a way of organizing society so that it can exist in the long term. This
means taking into account both the imperatives present and those of the future,
such as the preservation of the environment and natural resources or social and
economic equity.[39]
Sustainable development is an
approach to economic planning that attempts to foster economic growth while
preserving the quality of the environment for future generations. Despite its
enormous popularity in the last two decades of the 20th century, the concept of
sustainable development proved difficult to apply in many cases, primarily
because the results of long-term sustainability analyses depend on the
particular resources focused upon. For example, a forest that will provide a
sustained yield of timber in perpetuity may not support native bird
populations, and a mineral deposit that will eventually be exhausted may
nevertheless support more or less sustainable communities. Sustainability was
the focus of the 1992 Earth Summit.[40]
Although numerous international
environmental treaties have been concluded, effective agreements remain
difficult to achieve for a variety of reasons. Because environmental problems
ignore political boundaries, they can be adequately addressed only with the
cooperation of numerous governments, among which there may be serious
disagreements on important points of environmental policy. Furthermore, because
the measures necessary to address environmental problems typically result in
social and economic hardships in the countries that adopt them, many countries,
particularly in the developing world, have been reluctant to enter into
environmental treaties. Since the 1970s a growing number of environmental
treaties have incorporated provisions designed to encourage their adoption by
developing countries. Such measures include financial cooperation, technology
transfer, and differential implementation schedules and obligations.[41]
The greatest challenge to the
effectiveness of environmental treaties is compliance. Although treaties can
attempt to enforce compliance through mechanisms such as sanctions, such
measures usually are of limited usefulness, in part because countries in
compliance with a treaty may be unwilling or unable to impose the sanctions
called for by the treaty. In general, the threat of sanctions is less important
to most countries than the possibility that by violating their international
obligations they risk losing their good standing in the international community.
Enforcement mechanisms other than sanctions have been difficult to establish,
usually because they would require countries to cede significant aspects of
their national sovereignty to foreign or international organizations. In most
agreements, therefore, enforcement is treated as a domestic issue, an approach
that effectively allows each country to define compliance in whatever way best
serves its national interest. Despite this difficulty, international
environmental treaties and agreements are likely to grow in importance as
international environmental problems become more acute.[42]
Many areas of international
environmental law remain underdeveloped. Although international agreements have
helped to make the laws and regulations applicable to some types of
environmentally harmful activity more or less consistent in different
countries, those applicable to other such activities can differ in dramatic
ways. Because in most cases the damage caused by environmentally harmful
activities cannot be contained within national boundaries, the lack of
consistency in the law has led to situations in which activities that are legal
in some countries result in illegal or otherwise unacceptable levels of
environmental damage in neighbouring countries.[43]
In India, the Environment Protection
Act[44]
implements the Stockholm convention. Along with that our judiciary always tried
to carry on the idea of sustainable development in their decisions.
Human rights jurisprudence relating
to the environment has developed significantly in the past 25 years since the
Rio Conference, but none of this owes anything to UN human rights bodies. An
early attempt to adopt a UN declaration on human rights and the environment
terminated in 1994 when an ambitious but politically controversial draft failed
to secure the backing of states. The Office of the High Commissioner for Human
Rights (OHCHR) returned to the problem in 2009, emphasizing that “While the
universal human rights treaties do not refer to a specific right to a safe and
healthy environment, the United Nations human rights treaty bodies all
recognize the intrinsic link between the environment and the realization of a
range of human rights, such as the right to life, to health, to food, to water,
and to housing.” Three theoretical approaches were subsequently identified. The
first sees the environment as a “precondition to the enjoyment of human
rights”. The second views human rights as “tools to address environmental
issues, both procedurally and substantively”. The third integrates human rights
and the environment under the concept of sustainable development. Finally, the
report also identifies “the call from some quarters for the recognition of a
human right to a healthy environment” and notes the alternative view that such
a right in effect already exists.[45]
An independent expert-special
rapporteur (Professor John Knox) was appointed by the UN Human Rights
Commission (UNHRC) in 2012 to report on the substantive and procedural
dimensions of human rights obligations relating to the enjoyment of a “safe,
clean, healthy and sustainable environment” and the role of various
institutional mechanisms in implementing those obligations. His reports
articulate a largely uncontroversial account of what human rights law has contributed
to environmental protection at the national and international level. The
Special Rapporteur noted that “no global agreement sets out an explicit right
to a healthy (or satisfactory, safe or sustainable) environment…Nor have the
later conferences on sustainable development in Johannesburg in 2002 and Rio de
Janeiro in 2012 proclaimed a right to a healthy environment.” However, his
final report in 2018 advocates recognition of a right to a “safe, clean,
healthy and sustainable environment”, derived largely from existing human
rights law.[46]
At the same time there is value in
setting down those elements of human rights law already reflected in the
jurisprudence and in national law, and on which some degree of international
consensus is achievable. The rapporteur has at least demonstrated that regional
environmental practice in Europe, Latin America and Africa has global
significance, including the procedural rights enshrined in the Arhus
Convention, the obligation to assess environmental impacts and ensure a
reasonable balance between economic development and environmental protection,
the need to implement and enforce applicable environmental standards, and to
protect vulnerable groups such as indigenous peoples. But while the UNHRC now
recognises the environmental dimensions of human rights law, including its
relevance for sustainable development, it remains to be seen whether UN treaty
bodies follow suit in a meaningful way. [47]
In its submission to the Paris
Conference in 2015 the OHCHR set out ten considerations that should guide
states in the actions they take to address climate change. Inter alia these
include mitigating climate change and preventing negative effects on human
rights; ensuring accountability and effective remedy for human rights harms caused
by climate change; and guaranteeing equality, non-discrimination, and
meaningful and informed participation in decision-making. States should
co-operate to ensure an equitable outcome that delivers “low-carbon,
climate-resilient, and sustainable development, while also rapidly reducing
greenhouse gas emissions.” The policy asserts that “Only by integrating human
rights in climate actions and policies and empowering people to participate in
policy formulation can States promote sustainability and ensure the
accountability of all duty-bearers for their actions. This, in turn, will
promote consistency, policy coherence and the enjoyment of all human rights.”[48]
An anthropocentric approach to
sustainable development can be found in the 1992 Rio Declaration, whose
Principle 1 declares 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.’ This, however, does not preclude considerations of the
other two pillars, as acknowledgement of the economic and environmental pillars
is crucial for the attainment of human well-being. Without a decent environment
and economic enhancement, human needs and wants cannot be accommodated. The
individual dimension of the social pillar is well protected by human rights
documents, and it includes a wide array of rights, including the most basic
right to life, as well as religious freedom and the right to private and family
life. The social pillar is represented not only by civil and political rights,
but also by matters related to human dignity and basic human needs in the
context of work, education and improved health. These human rights are
traditionally thought of as individual rights, but the collective dimension of
them should be pointed out. The right to religion, for instance, includes a
freedom to worship in community with others, and improved education and health
facilities promote the interests of the collective. There are, moreover, human
rights that are collective by nature, namely, the rights and freedoms of social
and cultural minorities.[49]
Case law analysis: The case law
analysis will highlight examples of how sustainable development can be
operationalized through human rights courts. Deeper empirical evidence is not
yet available, but the following cases show a development towards an
implementation of the elements of sustainable development in certain
situations. In the context of human rights courts, it is important to point out
that the courts do not mention the concept of sustainable development as such,
that would be too politically sensitive since the respective conventions do not
entail a right to sustainable development. The courts can, however, help us to
deepen our understanding of sustainable development by recognising and
reasoning around the individual and collective dimensions of the concept’s
elements described above.[50]
López Ostra case[51],
where the European Court made clear that environmental obligations under the
ECHR do not only cover state activities, but also cover activities carried out
by private parties, in this case a waste treatment plant. The Court held that
the environmental degradation in this case directly obstructed the applicant’s
right to private and family life, Article 8 of the ECHR. The European Court
stated that even if there were no grave health risks, severe environmental
pollution could nonetheless affect the well-being of individuals and their
right to effectively enjoy their homes. Although recognising that states do
have a certain margin of appreciation to protect the economic interest of the
town in having a waste treatment plant nearby, the Court nonetheless held that
such interests could not outweigh the right to private life, referring to its
‘practical and effective’ doctrine. This doctrine emphasises that rights are to
be interpreted and applied in a way that makes them practical and effective,
not theoretical and illusory ‘rights on paper’. In this case, the right to
private and family life had been rendered practically ineffective, due to fume
emissions, noise and strong smells from the plant, according to the Court. It
therefore came to the conclusion that the right to private and family life was
violated, as Spain had not struck a fair balance between the general interest
in having the waste treatment plant nearby and the individual right.[52]
Four years later, the European Court
came to a similar conclusion in the Guerra and Others case.[53]
Moreover, the Court held that environmental responsibilities under Article 8
include an obligation of State authorities to provide affected people with
information about the environmental situation that might interfere with their
private and family life. Thereby, the European Court also recognised a
procedural dimension of the environmental pillar.[54]
Also in the Giacomelli case,[55] the
European Court found a violation of Article 8, due to environmental
destruction. In its assessment, the Court evaluated whether the authorities had
complied with the national environmental requirements. Since the domestic
procedures on suspension for facilities that did not fulfil the environmental
requirements were not followed, the Court held that it indicated that the state
had failed to fulfil its obligations under Article 8. The European Court has
hence set national environmental standards as a measurement of compliance with
the obligations under the ECHR. Thus, the Court is hesitant to set its own
standards for the environmental pillar and recognise that environmental
protection in general is important for human well-being. It rather relies on
the Contracting Parties’ existing national standards, thereby giving them a
certain margin of appreciation as to the threshold for environmental
destruction to trigger protection under the ECHR.[56]
These cases illustrate that the
European Court implicitly recognises the three pillars of sustainable
development. The parameter used to include the environmental pillar in the
domain of the Court, however, is whether or not the environmental destruction
directly and severely interferes with the right to private and family life.[57]
Concluding Remarks
By referring all the relevant facts
related to this point it can assure that human rights and environmental
protection are the entwined. Sustainable development includes human development
and economic development. Judiciary’s role in this area is commendable. It
always tried to make sustainable development and environment protection go hand
in hand without affecting human rights. In the name of sustainable development,
human rights cannot get separated from environmental protection. After all
right to life is the precious one among
other rights.
[1] Author: Lakshmy S, Assistant
Professor, Co-operative School of Law, Kerala
[2] Dinah Shelton, HUMAN RIGHTS,
HEALTH AND ENVIRONMENTAL PROTECTION:
LINKAGES IN LAW AND PRACTICE, A Background Paper for
the WHO
[3] https://www.aequitas-humanrights.org/human-rights-education/the-environment/brief-introduction-to-human-rights-and-the-environment/
[4] Brisman A. (2011) Stockholm
Conference, 1972. In: Chatterjee D.K. (eds) Encyclopedia of Global Justice.
Springer, Dordrecht. https://doi.org/10.1007/978-1-4020-9160-5_655
[5] UN Conference on the Human
Environment, 1972
[6] Ibid
[7] https://www.aequitas-humanrights.org/human-rights-education/the-environment/brief-introduction-to-human-rights-and-the-environment/
[8] P S Jaswal-Nishtha Jaswal,
Environmental law, Allahabad law agency, 3rd edition, 2009
[9] Supra 6
[10] Ibid
[11] Human Rights Resolution 2005/60
[12] UN Commission on Human Rights, Human
Rights Resolution 2005/60: Human Rights and the Environment as Part of
Sustainable Development, https://www.refworld.org/docid/45377c759.html
[13] Ibid
[14] https://www.aequitas-humanrights.org/human-rights-education/the-environment/brief-introduction-to-human-rights-and-the-environment/
[15] Ibid
[16] Dr.S.K Kapoor, Human Rights under
International law and Indian law, pg 163, Central law agency, 4th
edition, 2009
[17] Supra 10
[18] Dinesh Rao, Human Rights and
Environment,
http://www.legalserviceindia.com/legal/article-929-human-rights-and-environment.html
[19] Ibid
[20] Friends of the earth
international, Environmental rights are human rights, https://www.foei.org/what-we-do/environmental-rights-human-rights
[21] Dinesh Rao, Human Rights and
Environment, http://www.legalserviceindia.com/legal/article-929-human-rights-and-environment.html
[22] Ibid
[23] Ibid
[24] Ibid
[25] Ibid
[26] Supra 6
[27] Article 8
[28] Supra 6
[29] 1985
[30] 1991
[31] 1994
[32] AIR 2002 SC 1997
[33] 1995
[34] AIR 1993 ker. 1.
[35] AIR 1988 Raj. 2
[36] AIR 1997 SC 734.
[37] AIR 2001 SC 1948.
[38] https://blog.ipleaders.in/right-to-the-pollution-free-environment/
[39] https://youmatter.world/en/definition/definitions-sustainable-development-sustainability/#:~:text=Sustainable%20development%20is%20the%20idea,the%20Brundtland%20Report%20in%201987.
[40] https://www.britannica.com/topic/environmental-law/Sustainable-development
[41] Ibid
[42] Ibid
[43] Ibid
[44] 1986
[45] Alan Boyle, Climate change,
sustainable development and human rights, https://link.springer.com/chapter/10.1007/978-3-030-30469-0_10
[46] Ibid
[47] Ibid
[48] Ibid
[49] Emilee Folkoson, Human rights
court interpreting sustainable development: Balancing individual rights and
collective interest, https://www.elevenjournals.com/tijdschrift/ELR/2013/2/ELR-D-13-00016
[50] Ibid
[51] European Court of Human Rights:
López Ostra v. Spain, Application No. 16798/90, Judgment of 9 December 1994.
[52] Ibid
[53] European Court: Guerra and Others
v. Italy, Application No. 14967/89, Judgment of 19 February 1998.
[54] Ibid
[55] European Court: Giacomelli v.
Italy, Application No. 59909/00, Judgment of 2 November 2006
[56] Ibid