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Published: Fri, 02 Feb 2018
Right to environment of human right
Of late the worldwide society has amplified its alertness on the relationship between environmental dilapidation and human rights abuses.Exercise and enjoyment of Human Rights by all the people is necessary for full development as human beings. Human Rights help us to enlarge our inherent traits, aptitude, talent and scruples to meet our objects and religious needs. Life, livelihoods, culture and society, are elementary aspects of human subsistence and their maintenance is a fundamental human right. Devastation of environment is therefore a violation of human rights. And to extreme human rights cannot be enjoyed at all if the environment becomes impaired past a certain grave plane. The entire of community might in such a case expire collectively with all its culture. The poorer the environment becomes the more impaired are human rights and vice versa.
The gratification of all human rights is intimately connected to the environmental issue. Not only rights to life and health but also other social, economic, cultural, as well as political and civil rights, can be fully enjoyed only in a sound environment.
Environmental protection and human rights were viewed as separate areas by governmental institutions and non-governmental organizations alike at both national and international levels. The environmental issues in different regions of the world are now being accepted as having major human rights implications by the global society with growing globalization. The correlation between the expansion of science and technology and human rights has already been on the program of diverse United Nations bodies for decades.
The central foundation of the modern notion of human rights is the 1948 Universal Declaration of Human Rights and the many human rights documents and treaties that have followed it. According to the Stockholm proclamation – “Humans have 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 a solemn responsibility to protect and improve the environment for present and future generations”.
In spite of the obvious connection between environment and human rights international human rights law which contemplates environmental damage as a infringement of human rights has only lately begin to materialize and lucid definitions of environmental human rights have yet to be formulated.
Although the Human Rights Council has not passed resolutions or requested reports on human rights and the environment since that 2005 UN report, it continues to examine the connection between human rights and the environment in its ongoing work. The link between human rights and the environment, and may have contributed to the specific articulation of environmental rights in a recent UN Declaration on the Rights of Indigenous Peoples. The UN Declaration on the Rights of Indigenous Peoples, adopted by the Human Rights Council by Resolution 1/2 of 29 June 2006, includes one article specifically linking the environment to the human rights of indigenous peoples.
Homo sapiens “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 life itself.”
Human rights in the milieu of environmental development identifies that for human communities to survive they must have a sufficient and secure standard of living. They must be sheltered from injurious substances and hazardous products and be trained to preserve and allocate natural resources. Human rights for respect, dignity, equality, non-discrimination, participatory governance and life itself cannot be achieved without these in place.
The Emerging Right To Environment
At the 1992 United Nations “Conference on Environment and Development” (UNCED), informally known as the Earth Summit the Rio Declaration on Environment and Development, also known as Rio Declaration was a produced. The Rio Declaration comprised of 27 principles and proposed to funnel potential sustainable development around the world. Principle 1 says – “The role of humans: Human beings are at the centre of concern for sustainable development.”
Scholars in the have proposed at least three different concepts of environmental rights
environmental rights as separate human rights
environmental rights as encompassed within previously established human rights
environmental rights as rights of the environment in and of itself, regardless of its effects on people
The first concept conceives of environmental rights as disconnect human rights independent conventional human rights. Article 11 of the San Salvador Protocol to the American Convention on Human Rights, which was adopted in 1988 and entered into force in November 1999, can be attributed as a good example wherein it states that “everyone shall have the right to live in a healthy environment and to have access to basic public services.”
The African Charter states that: “All peoples shall have the right to a general satisfactory environment favorable to their development.” Environmental rights appears as a separate right in the report of the World Commission on Environment and Development which proposes it as one of the legal principles for environmental protection and sustainable development and stating that: “All human beings have the fundamental right to an environment adequate for their health and well-being.” Finally, it should be noted that, , although the environment as a human right is barely mentioned in the documents, elements of this right can be found in the Universal Declaration of Human Rights as well as in both Covenants.
The second concept of environmental rights conceives of such rights as entrenched in existing human rights such as the right to life, the right to health or the right to property. This concept has restricted but mounting support from human rights bodies mostly at the regional level. An example is the right to property enshrined in Article XXIII of the American Declaration of the Rights and Duties of Man also known as “American Declaration”.
The third concept of environmental rights treats such rights as belonging to the environment itself. In this “ecocentric” view environmental rights are human rights only in the sense that they require humans to enforce them. As this form of rights has no precedent in either codified or customary international law or in common law judges have not yet ruled on its applicability nor are they likely to do so. Courts are habitually reserved to implement rights which they have minute experience adjudicating and may be even less inclined to enforce rights which have yet to be firmly established as law.
Environment, Sustainable Development And Human Rights
Individuals and groups not only have the right to an adequate environment but also the duty to protect and improve the environment. This responsibility is not only towards other individuals or the community in which they live but towards mankind as a whole and even “future generations.”
The importance of environment for human rights was first clearly enunciated in the 1987 Brundland Commission Report.
The Brundland Commission in annex 1 to its Report proposed legal principles for environmental protection and sustainable development and stated a set of General Principles Rights and Responsibilities as follows:
Fundamental Human Rights: All human beings have the fundamental right to an environment adequate for their health and well being
Inter generational Equity: States shall conserve and use the environment and natural resources for the benefit of present and future generations
Conservation and Sustainable Use: States shall maintain ecosystems and ecological processes essential for the functioning of the biosphere, shall preserve biological diversity, and shall observe the principle of optimum sustainable yield in the use of living natural resources and ecosystems.
Environmental Standards and Monitoring: States shall establish adequate environmental protection standards and monitor changes in and publish relevant data on environmental quality and resource use.
Prior Environmental Assessments: States shall make or require environmental assessments of proposed activities which may significantly affect the environment or use of natural resource.
Prior Notification, Access and Due Process: States shall inform in a timely manner all the persons likely to be significantly affected by a planned activity and to grant them equal access and due process in administrative and judicial proceedings.
Sustainable Development and Assistance: States shall ensure that conservation is treated as an integral part of the planning and implementation of development activities and provide assistance to other states, especially to developing countries, in support of environmental protection and sustainable development.
General Obligation to Co-operate: States shall co-operate in good faith with other states in implementing the preceding rights and obligations.
Agenda 21 of the 1992 Earth Summit (UNCED) stated that “integration of environment and development concerns and greater attention to them will lead to the fulfillment of basic needs, improved living standards for all, better protected and managed ecosystem and a safer, more prosperous future.
At the United Nations World Summit on Sustainable Development (WSSD) Conference held in Johannesburg, South Africa in August / September 2002, the meeting agreed to place human rights and ethical considerations within the purview of environmental protection and sustainable development in the WSSD Plan of Implementation.
Approaches To Environmental Law And Human Rights
In Resolution 45/94, the United Nations General Assembly recalled the language of Stockholm stating that all individuals are entitled to live in an environment adequate for their well being. The resolution called for enhanced effort towards ensuring a better environment. Suffice to say that Principle 1 of the Stockholm Declaration established a foundation for linking human rights and environmental protection 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.”
In the three decades since the Stockholm Conference, the links that were established by these first declaratory statements have been formulated and elaborated in various ways in international legal instruments and the decisions of human rights bodies.
The first approach, perhaps closest to the Stockholm Declaration is one where environmental protection is described as a pre-condition to fulfilling human rights standards and the enjoyment of internationally guaranteed human rights especially the rights to life and health. Environmental protection is thus an essential instrument in the effort to secure the effective universal enjoyment of human rights. Klaus Toepfer reflected this approach in his statement to the 57th Session of the Commission on Human Rights in 2001 when he said. “Human rights cannot be secured in a degraded or polluted environment. The fundamental right to life is threatened by soil degradation and deforestation and by exposures to toxic chemicals, hazardous wastes and contaminated drinking water… Environmental conditions clearly help to determine the extent to which people enjoy their basic rights to life, health, adequate food and housing, and traditional livelihood and culture. It is time to recognize that those who pollute and destroy the natural environment are not just committing a crime against nature, but are violating human rights as well.
The second rights-based approach highlights the presently existing human rights as a route to environmental protection and states, “the legal protection of human rights is an effective means to achieving the ends of conservation and environmental protection”. It views certain human rights as essential elements to achieving environmental protection which has as a principal aim the protection of human health. This approach is well illustrated by the Rio Declaration which formulates a link between human rights and environmental protection largely in procedural terms, declaring in Principle 10 that access to information, public participation and effective judicial and administrative proceedings, including redress and remedy, should be guaranteed because “environmental issues are best handled with the participation of all concerned citizens, at the relevant level” There exists however, a raging debate on whether to recognize an actual and independent right to a satisfactory environment as a legally enforceable right.
The third approach and most recent is to deny the existence of any formal connection between human rights and the environment. Rather it views the links as indivisible and inseparable and posits the right to a safe and healthy environment as an independent substantive right. Accordingly there is no requirement for an environmental human right. The argument goes that, since the Stockholm Conference in 1972, international environmental law has developed to such extents that even the domestic environments of states has being internationalized. However there are many who oppose this view arguing that there is in fact a benefit to bringing the environmental law under the ambit of human rights. The argument goes further that environmental law has in many parts of the world, at both international and domestic level suffered from the problem of standing; and because of this inherent barrier, it is often difficult for individuals or groups to challenge infringements on environmental law, treaties or directives.
Human Rights Instruments And Enviromental Protection
Most human right treaties were drafted and adopted before environmental protection became a matter of international concern. As a result, there are few references to environmental matters in international human rights instruments, although the right to life and health are certainly included and some formulations of the latter right make reference to environmental issues.The Universal Declaration of Human Rights, adopted and proclaimed by the United Nations General Assembly in 1948, provides for the right to life, liberty and security of persons in Article 3 and the right to health in Article 25.
The International Covenant on Economic, Social and Cultural Rights (1CESCR) in Article 7 (b) guarantees the right to safe and healthy conditions of work and in Article 10 the right the right of every child and young person to be free from work harmful to their health while Article 12 expressly calls on state parties to take steps for “the improvement of all aspects of environmental and industrial hygiene”. The Convention on the Rights of the Child refers to aspects of environmental protection in respect to the child’s right to health. Article 24 provides that states parties shall take appropriate measures to combat disease and malnutrition “through the provision adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution. ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries contains numerous references to the lands, resources and environment of indigenous peoples.
Environmental Instruments With Provisions On Health And Human Rights
Concern for health is a constant theme in environmental agreements, indeed one of the principal aims of environmental protection. A standard definition of pollution, found in many legal texts is “the introduction by man, directly or indirectly, of substance or energy into the environment resulting in deleterious effects of such a nature as to endanger human health, harm living resources…” etc.
The preambles of European Community directives often state their aim as being “to protect human health and the environment”
Similarly the Basel Convention on the Control of Tran-boundary Movements of Hazardous Wastes and their Disposal begins its preamble “aware of the risk of damage to human health”.
The Stockholm Declaration proclaims in paragraph 3 its concern about: Growing evidence of man-made harm in many regions of the earth: dangerous levels of pollution in water, air, earth and living beings; major and undesirable disturbances to the ecological balance of the biosphere, destruction and depletion of irreplaceable resources, and gross deficiencies harmful to the physical, mental and social health of the man, in the man-made environment, particularly in the living and working environment.
Stockholm Principle 7 calls on states “to take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health.”
Article 1 of the Legal Principles for Environmental Protection and Sustainable Development expressly links the three fields in declaring that “All human beings have the fundamental right to an environment adequate for their health and well-being.
Principle 1 of Rio Declaration proclaims that human beings “are entitled to a healthy and productive life in harmony with nature” and provides that states should effectively cooperate to discourage or prevent the relocation and transfer to other states of any activities and substances that inter alia, are found to be harmful to human health.
The Conference on Security and Co-operation in Europe (CSCE) on the environment in Sofia in 1989 reaffirmed respect for the right of individuals, groups and organizations concerned with the environment to express freely their views, to associate with others and assemble peacefully, to obtain and distribute relevant information and to participate in public debates on environmental issues. Also the Convention on Environmental Impact Assessment in a trans-boundary context, 1991 calls for the “establishment of an environmental impact assessment procedure that permits public participation” in certain circumstances.
Due to the absence of a right to environmental protection in the 1948 UNDHR environmental issues have been raised incidentally, through the assertion of protected rights, such rights that protect the integrity of persons and their immediate surroundings. Consequently environmental claims brought before the regional human rights convention controlling organs (especially the European HR Commission and later the European Court of Human Rights) have been formulated as violations of
The right to life.
The right to respect for privacy and family life.
The right to the peaceful enjoyment of property and
The right to obtain information concerning risk to health and safety.
Subsequently after the 1972 Stockholm Convention and following from the developments that are taking place through the intervention of national and regional Courts in various parts of the world, the Courts are moving the right to a healthy environment up the hierarchy of human rights by recognizing it as a fundamental right.
The constitutional rights granted are increasingly being enforced by courts. In India for example, a series of judgments between 1996 and 2000 responded to health concerns caused by industrial pollution in Delhi. In the case of Charan Lal Sahu v. Union of India the Supreme Court of India interpreted the right to life guaranteed by Article 21 of the Indian Constitution to include the right to a wholesome environment. In the case of Subhash Kumar V State of Bihar the court observed that the “right to life guaranteed by Article 21 of the Constitution includes the right of enjoyment of pollution – free water and air for full enjoyment of life”.
State Responsibility And The Environment
The principles of state responsibility dictate that States are accountable for breaches of international Law. Customary international law imposes several important fundamental obligations upon States in the area of environmental protection. The view that international law supports an approach predicated upon the absolute territorial sovereignty, so that a State could do as it liked irrespective of the consequences upon other States has long been discredited. The basic duty upon states is not so to act, as to injure the rights of other States.
It is evident that environmental and human rights are closely related. The development of the relationship between human rights and the environment would facilitate the merging of human rights priciples within an environmental scale. The human rights would be stregthened by the amalgamation of environmental concerns providing victims of environmental dilapidation the opportunity of access to justice and enabling the expansion of the scope of human rights protection and generation of concrete solutions for cases of degradation. Connecting human rights and the environment brings victims of environmental degradation nearer to the mechanisms of protection that are provided for by human rights. As we increasingly recognize the serious impact of a degraded environment on human health and well being, we are better placed to adjust our policies and cultural practices to reflect our enhanced understanding. As a result, we should be able to protect human rights and human dignity within its broader social, economic and cultural context by drawing from and contributing to those who are actively engaged in the environmental and public health arenas. This should also facilitate those who are working in the environmental and conservation fields to develop a better working relationship with those in the human rights arena. This will 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.
The demands for a safe pollution – free and healthy environment, as coming within the scope of human rights, have to a large extent been propagated by the developing countries of the south against the culture of industrialized countries of the North, a culture directed at economic growth based on mass production, mass consumption and mass disposal of waste materials, all of which amount to a clear breach of the fundamental rights of the poorer countries. One of the most important consequences of incorporating human rights principles within an environmental scope is to provide victims of environmental degradation the possibility of access to all round justice. 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 by human rights law.” As we increasingly recognize the impact of a polluted and degraded environment on human health and well-being, we are better placed to adjust our policies and cultural practices to reflect our enhanced understanding. Consequently, we should be able to protect human rights and human dignity within its broader social, economic and cultural context by drawing from and contributing to those who are actively engaged in the environmental and public health arenas. Eventually this will 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 generations yet unborn.
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