Nature, Hazards And Rights: Exploring National And International Perspectives Of Environment Exploitation By - Dr. Hardik Daga
Nature,
Hazards And Rights: Exploring National And International Perspectives Of
Environment Exploitation
Authored
By - Dr. Hardik Daga
Abstract
Environmental degradation is not as new a phenomenon as it is perceived
to be considering that man’s lust always outweighs his needs. Science and
technology have bombarded the world with a whole lot of new words and meanings inculcating
some of the not so welcomed new age terms that the 21st century
generation has latched onto like environmental degradation, climate change,
global warming etc. Even a country like India also does not seem to lag behind
with respect to suffering from the curse. Having a clean environment is a human
right accepted and guaranteed under various international conventions. The
relation between the two is ever lasting and hence is a subject matter of
discussion and deliberation. Through this paper the author wishes to establish
a link between human rights and environment and delve deep into the issues
relating to degradation and how it leads to violation of human rights in
national and international arena through an analytical research methodology.
I.
Introduction
A man once bought a monkey’s paw off
a roadside vendor, who claimed it to have “magical powers”.[1] So
it turned out to have, and the man was given a wish to ask for. Being greedy as
the whole clan is inherently, he wished to be super rich. ‘Poof!’ and the wish
came true but that cost him the life of his very own son, who died in a car
crash and that is how he got money from the insurance company.
Dramatic as it may be, it is but, the
sad reality of Man. Ironically we cannot blame ourselves as from the very
inception of our race it was inculcated in our nature to be ever greedy and to
be driven not by what we need but the greed and to top it all our never ending
wants. The eventual consequence of this greed is exploitation and extremity
leads to nothing but hazardous ends. We have seen the effects of this
insatiableness in almost every sphere of life but, the most drastic one, which
poses maxim threat to its destructors, is the one that gives life- nature
itself.
In the long
evolution of the human race on this planet, a stage has been reached when,
through the rapid acceleration of science and technology, we have acquired the
power to transform our environment in countless ways and on an unprecedented
scale.[2]
Even though our natural environment is an integral component running life on
the planet, its value is being neglected and compromised with by the present
generation. Environmental degradation due to unsustainable human practices and
activities today seriously endangers the entire production platform of the
planet. A number of direct and indirect factors are responsible for
environmental degradation around the globe.[3]
The world every year witnesses deaths
of more than 2 million and billions of cases of diseases which can be safely
attributed to pollution. All over the world, people experience the negative
effects of environmental degradation ecosystems decline, including water
shortage, fisheries depletion, natural disasters due to deforestation and
unsafe management and disposal of toxic and dangerous wastes and products[4].
The effects are so disastrous that people directly suffer from the degradation
of the ecosystems that they rely upon for their livelihoods. These facts
clearly establish a close relationship between the environment and the enjoyment
of human rights, and justify an integrated approach to environment and human
rights.[5]
Second half of the 20th century has
seen major environment degradation due to factors like Urbanization, population
growth, economic growth, increase in energy use, intensification of agriculture
etc. What man tends to ignore in the process of exploiting nature is the fact
that all these and many more factors combine to affect human lives in the worst
possible ways.[6]
In response to the expected and
unexpected catastrophic effects, many international treaties and local laws and
regulations on environmental protection have been formulated after many rounds
of deliberation and discussion. Initially, human rights in relation to
environmental protection were nowhere to be mentioned. It was only after 1970’s
that links between human rights and the environment have progressively been
recognised. People have come to realize the importance of a clean and healthy
environment with respect to fundamental human rights such as the right to life,
personal integrity, family life, health and development. Cases of environmental
disruption, like the Bhopal[7]
and Chernobyl disasters, have made it evident that human rights and the
environment are inherently interlinked and that (a clean and
healthy)Environment is a Human Right.
Environmental and human rights law have some
traits which lead to their synthesised study. These two disciplines have
internationalized and thus have gathered attention globally. The international community,
aware of the threatened consequences,
has well in time assumed the
commitment to observe the realization of human rights and respect
for the environment. The consequences
brought out by environmental degradation transcend political boundaries and is of critical importance to
the preservation of world peace and security. Both areas of law tend to
universalize their object of protection[8]. Human rights are universal in nature but at
the same time is a responsibility to be undertaken by everyone equally.
Given the occasional helplessness suffered by
victims of environmental degradation, linking human rights and the environment
brings such victims closer to the mechanisms of protection that are provided
for by human rights law.[9]
II.
Approaches to
Environmental Law and Human Rights
Even though human rights and
environmental law have traditionally been envisaged as two distinct,
independent spheres of rights, lately that perception has modified to inculcate
cause of protection of the environment in the framework of human rights.
The first approach is one
where environmental protection is perceived as a mean to fulfil the standards
of human rights. Under this approach, environmental law is gestated as ‘giving
protection that would not only ensure well-being of generations to come but
also provide for those who survive upon natural resources for their
livelihood.’ Here the means is through environmental law to get to the end i.e.
fulfilling human rights.
The second approach reverses
the two spheres i.e. it states that ‘the legal protection of human rights will
lead to effective conservation and environmental protection.’ The second
approach highlights the present existing human rights as a route to
environmental protection, with human rights being the primary focus with the
backdrop of environmental protection. This approach rages a debate on whether
an independent right to a satisfactory environment should be recognized as a
legally enforceable right.
The third approach to the
question of ‘human rights and the environment’ is the denial of existence of
any formal connection between the two spheres. As per this approach, there is
no requirement for an ‘environmental human right.’ The rationale behind the
same is that since the Stockholm Conference in 1972, international
environmental law has developed to the extent of domestic environments of
states being internationalized. In the presence of environmental protection in
an international sense and notwithstanding the concept of state sovereignty, a
separate wing altogether for the same seems unnecessary. However, there are
many who criticize this view. Their argument to bring environmental law under
the ambit of human rights is based on the fact that Environmental law be it at
the international or domestic level has suffered from the problem of standing
and it is due to this barrier that it is often difficult for individuals or
groups to challenge infringements of environmental law, treaties or directives,
etc.
There has been a great deal of debate
on the theoretical soundness of the idea of a human right or rights to a
satisfactory environment considering that there can occasionally be a conflict,
or tension, between the established human rights and the protection of the
environment per se[10].
Sometimes in the process of enjoyment of certain rights natural resources are
over exhausted which lead to environmental degradation. Nevertheless, clearly
there is a prima facie rhetorical and moral advantage in making the
environment a human rights issue.[11]
III.
Developing
Jurisprudence in India
Even though a major hurdle in
inculcating the right to environment in the constitution is primarily in
defining environment and related terms, the Constitution by the Forty Second
Amendment Act 1976 explicitly incorporated environmental protection and
improvement as part of State policy through the insertion of Article 48A. Also,
article 51A (g) imposed a similar responsibility on every citizen “to protect
and improve the natural environment including forests, lakes, rivers, and
wildlife and to have compassion for all living creatures.”
The right to life under article 21
has been used in a diversified manner in India which includes, inter alia,
the right to survive as a species, quality of life, the right to live with
dignity and the right to livelihood. This article states: ‘No person shall be
deprived of his life or personal liberty except according to procedures
established by law.’ The Supreme Court expanded this right over the years to
interpret the right to life and personal liberty to include the right to the
environment.
Rural Litigation and Entitlement Kendra v. State of U.P.[12]
was one of the earliest cases where the Supreme Court dealt with issues
relating to environment and environmental right. This concept of right to life
was further elaborated in Francis Coralie Mullin v. Union Territory
of Delhi[13] where
the Supreme Court laid down a list of positive obligations on the State, as
part of its duty correlative to the right to life. An important understanding
of claims involving the environment is needed to accommodate it within the
broad rubric of human rights.[14]
The link between environmental quality
and the right to life was taken up by a
constitution bench of the Supreme Court in the Charan Lal Sahu.[15]
Similarly, in Subash Kumar,[16] the Court rightly observed that ‘right to life guaranteed by article 21
includes the right of enjoyment of pollution-free water and air for full
enjoyment of life.’ The Court in this case gave recognition to the right to a
wholesome environment as part of the fundamental right to life.
The Supreme Court has used the right
to life as a basis for emphasizing the need to take drastic steps to combat air
and water pollution.[17]
It has directed the closure or relocation of industries and ordered that
evacuated land be used for the needs of the community.[18]
The courts have taken a serious view of unscientific and uncontrolled quarrying
and mining,[19] issued
orders for the maintenance of ecology around coastal areas,[20]
shifting of hazardous and heavy industries[21]
and in restraining tanneries from discharging effluents.[22]
Another expansion of the right to
life is the right to livelihood (article 41), which is a directive principle of
state policy. This extension keeps a check on government actions with respect
to environmental impacts that have the potential to dislocate the poor and
disrupt their lifestyles. Thus, there has evolved a strong relation between the
right to livelihood and the right to life in the context of environmental
rights. The Court ,keeping in mind the rights of indigenous people being thrown
away by development projects, has been guided by the positive obligations
contained in article 48A and 51A(g), and has ordered adequate compensation and
rehabilitation of the evictees.
IV.
Relating Human Right to Environment in International
Environmental Laws
There
are two basic approaches to the fundamental study of interaction of human
rights and environment in the international arena. The first is that the right
to a healthy or adequate environment is itself a human and the second is the
idea that environmental human rights can be derived from other human rights,
usually – the right to life, the right to health, the right to private family
life and the right to property etc. hence making it a derivative right.
The most crucial step to trace the human right
to environment is to study the existing international regime of environment
protection and analyse if recognition of the same exists.
It was after the Trails Malter (1928-1941) arbitration that the foundation for
modern international environmental law was laid down at the United Nations
Conference on the Human Environment in Stockholm 1972. It was here that the
Stockholm Declaration on the Human Environment i.e. Stockholm Declaration was
adopted unanimously. Even though the declaration lacked binding legal character
it declared the agenda and framework for future discussions and initiatives.
On examining the Stockholm declaration, we find that there are two
principles that talk explicitly of a right to environment. Principle 1 of the
Stockholm Declaration contains the “fundamental right to freedom, equality and
adequate conditions of life, in an environment of quality that permits a life
of dignity and well-being”. This principle recognizes the quality of
environment having a direct bearing on the enjoyment of fundamental freedom of
equality and dignity of life. Hence, a life of dignity is not possible in the
absence of good quality environment. This conclusion has been used
later to establish that human right to environment is a peremptory norm of
customary international law. This clearly implies that human right to
environment must get precedence over any other condition that is necessary to
support life.
According to Principle 7 of the Stockholm Declaration, the States
are required to take steps to prevent pollution of the environment by
substances, which affect human health. Here prevention of environment pollution
so as to protect human health is emphasised upon. Human right documents clearly
lay down that right to health is a human right. Once admitted that protection
of human right to health is not possible without protecting the right to
environment it naturally follows that the later right is also a human right.[23]
In 1992, the UNCED held in Rio de Janeiro was a landmark
international environment law conference that focused on development related
issues. The term “human rights” was not clearly defined here and also no
explicit link was established between human and environmental rights. Even
so, principle 10 of the Rio Declaration can be considered as participatory
right as it suggests that environmental issues are “at best handled with
participation of all concerned citizens”, and further requires the states to provide
“effective access to judicial and administrative proceedings[24]“.
The Rio Declaration mainly focuses on the right to sustainable development.
Article 1 of the Rio Declaration says that “human
beings are the centre of concern for sustainable development and are therefore
entitled to a healthy and productive life in harmony with nature”. This
entitlement to ‘healthy and productive life in harmony with nature’ is nothing
but a reflection of rights based approach to environmental concerns.
V.
Conclusions
Establishment of an advanced and concrete relationship between human rights and the environment would enable the
embodiment of human rights priciples intervowen in an environmental dimension,
such as anti-discrimination standards, the protection of vulnerable groups and
the need for social participation. Simultaneously, the human rights sphere
would be nourished by the fusion of environmental concerns, which would allow
the expansion of the scope of protection of huan rights and generation of
concrete solutions in cases of abuse and exploitation. Grievance redressal and
acess to justice are most important consequences that should be provided to the
victim of environmental degradation. Such a step would not only provide relief
to the sufferers who sometimes have no remedy but also bring them closer to the
mechanisms of protection that are provided for by human rights law.
Undeniably, environmental and human
rights are indistinguishably linked. As we acknowledge the serious impacts of a
degraded environment on human health and well being, we stand at a better
placed to amend our policies and cultural practices to reflect our enhanced
understanding. Thus, we should protect human rights and human dignity within
its broader social, economic and cultural context by way of contributions and
active engagement in various arenas related to environment and public health.
This would further develop a better understanding between people in the human
rights and environment sector, which would eventually lead to the articulation
of a more integrated approach to dealing with socio-economic and environmental
problems, encouraging the development of a sustainable model for the
preservation of biological resources and natural ecosystems, for the use and
enjoyment of both present and future generations.
[2]
Ashish Kothari and Anuprita Patel, supra
note 1.
[3]
‘The Environmental Food Crisis: A UNEP Rapid Response Assessment’,
http://www.grida.no/publications/rr/food -crisis/
[4]
‘Human Rights and the Environment’, http://www.unep.org/delc/HumanRightsandTheEnvironment/tabid/54409/D
efault.aspx
[5] Id.
[6] Timothy Egan,
‘Sustainability: Carrying Capacity & Ecological Footprints’, New York Times US California: Slumburbia (2010) http://www.overpopulation.org/consumption.html.
[7]
Gurdip Singh, Environmental Law in India 100 (MacMillan Indian Ltd., New
Delhi 2005).
[8] Y. K. Sabharwal,
‘Human Rights and the Environment’.
[11] Margaret DeMerieux, ‘Deriving Environmental Rights from the European Convention for the Protection
of Human Rights and Fundamental Freedoms’, (2001) 21(3) Oxford Journal
of Legal Studies 521.
[12] Rural Litigation and Entitlement Kendra v. State of U.P.,
A.I.R. 1985 S.C. 652.
[14]
Y. K. Sabharwal, supra note 7.
[15] Charan Lal Sahu v. Union of India,
A.I.R. 1990 S.C. 1480.
[16] Subhash Kumar v. State of Bihar,
A.I.R. 1991 S.C. 420.
[17] V. Mathur v. Union of India, (1996) 1 S.C.C. 119.
[18] M. C. Mehta v. Union of India, (1996) 4 S.C.C. 351.
[20]
Indian Council for Enviro-Legal Action v. Union of India (Coastal Protection
Case), (1996) 5 S.C.C. 281.
[21]
M. C. Mehta v. Union of India, (1996) 4 S.C.C. 750.