Environmental rights

SHOULD ENVIRONMENTAL RIGHTS TRUMP HUMAN RIGHTS?

I. INTRODUCTION

The aims of this essay are to provide a basic background of human and environmental rights and to give a discussion about “Should environmental rights trump human right?”

Environmental degradation is one of the most severe problems human beings are suffering from. Many people do not have access to clean air, drinking water and experience health problems due to the increasing pollution. According to UNEP (2005), more than two million annual deaths and billions of cases of disease are attributed to pollution. Nearly half a billion of people, mainly women and children in poor rural areas, live in severely polluted environment. Annually, 500 million premature deaths can be attributed to the high levels of pollution in cities. It is estimated that the deterioration of ozone layer will lead to more than 300,000 additional cases of skin cancer in the world and 1.7 million cases of cataracts.

Despite their separate beginnings, human rights law and environmental law have an important element in common: they are both seen as a challenge to, or limitation on, the traditional understanding of state sovereignty as independence and autonomy. However, while the traditional debate on sovereignty has conceived of human rights and environmental law as limitations on, or even as threats to, the State's freedom and independence, a more contemporary approach recognizes that protecting both human rights and the environment does not limit the State's sovereignty, but rather provides an expression of this sovereignty. Moreover, from today's perspective, it seems obvious that human rights and the environment are inherently interlinked, as the life and the personal integrity of each human being depends on protecting the environment as the resource base for all life {{59 GE 2004}}.

It is therefore not surprising that the international community is addressing the linkages between human rights and environmental rights. The relationship between the quality of the human environment and the enjoyment of basic human rights was first recognized by the UN General Assembly in the late 1960s. In 1972, the United Nations Conference on the Human Environment (UNCED) made a direct link between the environment and the right to life. Ten years later, the World Charter on Nature explicitly referred to the right of access to information and the right to participate in environmental decision-making. And a decade after that, in 1992, the Rio Declaration acknowledged the right to a healthy and productive life in harmony with nature and the right of access to environmental information and of public participation in environmental decision-making.7 Most recently, however, the 2002 World Summit on Sustainable Development in Johannesburg simply acknowledged the consideration being given to the possible relationship between environment and human rights {{59 GE 2004}}.

II. ENVIRONMENTAL RIGHTS

The environment is the most recent concern of international law, although many past conflicts were essentially “environmental” insofar as they involved disputes over land or other resources. It was only with the emergence of the environmental movement in the 1960s that it became essential to protect the fundamental human rights due to the significant proliferation of violation of rights caused by environmental conflicts. Thus, in 1972 at the United Nations Conference on Human Environment (Stockholm), emerged the idea that an acceptable environment might constitute a precondition for the enjoyment of certain human rights {{53 Andresson, A. 2003}}. The Stockholm Declaration in 1972 provided the first formal recognition of the right to a healthy environment and the accompanying responsibility:

Principle 1 of the 1972 Stockholm Declaration:

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.

Principle 2 of the 1972 Stockholm Declaration:

The natural resources of the earth including the air, water, land, flora and fauna and especially representative samples of natural ecosystems must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.

Since 1972 there has been a protracted debate about the existence of the right to a healthy environment, its philosophical underpinnings, its moral and legal validity, its theoretical parameters, and its potential utility {{55 Boyd, D.R. 2010}}. Supporters argue that the potential benefits of recognizing the right to a healthy environment include: the enactment and enforcement of stronger and more comprehensive environmental laws; a level playing field in comparison with other rights greater government and corporate accountability protection of vulnerable groups who currently shoulder a disproportionate burden of environmental harms; and increased citizen participation in decisions and actions to protect the environment {{59 GE 2004}}.

This grand statement might have provided the basis for subsequent elaboration of a human right to environmental quality, but its real-world impact has been noticeably modest. It was not repeated in the 1992 Rio Declaration on Environmental Development, which makes human beings the central concern of sustainable development:

Principle 1 of the 1992 Rio 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.

An important consensus reached at the Rio Summit in 1992 was that sustainable development and environmental protection cannot be achieved independently from human development. With regards to procedural rights, the 1982 World Charter for Nature was one of the first declarations that recognised the right of individuals to participate in decision making and to have access t means of redress when their environment had suffered damage or degradation. Ten year later, principle 10 of the 1992 Rio Declaration on Environment and Development stated the need for these participatory rights {{57 Boyle, A. 2007}}:

Principle 10 of the 1992 Rio Declaration:

Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each 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 participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

According to Shelton (2009), the Rio Declaration's failure to give greater emphasis to human rights was indicative of uncertainty and debate about the proper place of human rights law in the development of international environmental law. Fifteen years later there is still room for debate {{63 Shelton, D. 2009}}.

III. HUMAN RIGHTS

Most human rights treaties either make no explicit reference to the environment at all such as the European Convention on Human Rights or they do so only in relatively narrow terms focused on human health, and it is doubtful whether the latter agreements add anything to the case law derived from the right to life. There is one notable exception: the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, whose preamble not only recalls Principle 1 of the Stockholm Declaration and recognizes that “adequate protection of the environment is essential to human wellbeing and the enjoyment of basic human rights, including the right to life itself” but also asserts that “every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations.”

Some scholars argue that there are three categories, or generations, of human rights. The first generation of rights is the basic civil and political rights, including the right to life, freedom of speech, the right to vote, etc. These rights are recognized in international law through the International Covenant on Civil and Political Rights and are enshrined in almost all national constitutions. The second generation of rights includes social, economic, and cultural rights, such as the right to health and the right to work. These rights are recognized in international law through the International Covenant on Economic, Social, and Cultural Rights, but are not as widely entrenched in national constitutions as political and civil rights. The third generation of rights - also called collective or solidarity rights - includes the rights to peace, development, and a healthy environment. Third generation rights are described as “one of the responses of the international community to changing circumstances and needs.” {{55 Boyd, D.R. 2010}}

IV. DISCUSSION

II.1. CIVIL AND POLITICAL RIGHTS

{{59 GE 2004}} 22

II.2. ECONOMIC AND SOCIAL RIGHTS

{{59 GE 2004}} 27

II.3. COLLECTIVE AND SOLIDARITY RIGHTS

{{60 Philippe, C. 2004}} 4

Pollution Threats to Human Rights {{62 Kristin, S. 2007}} 7

The linkage between human rights and environmental concerns embrace at least three dimensions:

• The right to a healthy environment is a fundamental part of the right to life and to personal integrity.

• Environmental destruction can result in discrimination and racism.9 Thus, socially and economically disadvantaged groups seem to live more often than other groups do in areas where environmental problems pose a real threat to human health.

• Procedural human rights such as access to information, access to justice and participation in political decision-making are often crucial for ensuring policies that respect environmental concerns.

Case study: {{61 Human Rights Dialogue 2004}}

V. CONCLUSION