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Published: Fri, 02 Feb 2018
Links Between Human Rights And Environmental Sustainability International Law Essay
Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems.  Environmental degradation only serves to affect the quality of life adversely. It is now accepted that the preservation of the environment is integral to the protection of other rights such as the right to food, right to health and the right to life.  Thus, it can be said that the human right to a life of dignity is intrinsically linked to the right to a clean and healthy environment.  This was recognised in the Stockholm Declaration which stated that “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”. 
While technological advancement may be an important objective, the goal of sustainable development must not be lost sight of. Sustainable development implies meeting the needs of the present generations without compromising on the ability of the future generations to meet theirs.  Thus, there must be a balance between the right to development and the protection of the environment. The United Nations Human Rights Commission in a draft resolution on ‘Human Rights and the Environment’ expressed that “the preservation of life-sustaining ecosystems under conditions of rapid scientific and technological development is of vital importance for the protection of the human species and the promotion of human rights.”  This balance can best be achieved if the right to a clean environment is given an equal status (as a human right) as the right to development.
This paper seeks to analyse efforts made at the international level to accord the right to a clean environment the status of a human right. The paper will explore both international environmental law instruments and international human rights instruments to discern the current status of this right. Lastly, the paper will, using India as an example, elaborate upon how the right to environment can be read to be a human right.
II. The Right to Environment in International Environmental Law
International environmental law seeks to protect the environment per se through the imposing obligations on governments, corporations and individuals and the setting of behavioural standards. Several factors such as air and water pollution and extinction of species and the negative social and health impact of the same such as disruption of the food chain, led to the gaining of significance of this field of law in the international community. While, some argue that this field of law is eco-centric, others argue that it is anthropocentric. It is the author’s belief that it is neither. International environmental law seeks to balance the needs of human beings with the need to protect the environment from exploitation. The key concept here is that of sustainable development.
The beginning of international environmental law can be traced to the United Nations Conference on the Human Environment held at Stockholm in 1972. At this conference, nations adopted the non-binding Stockholm Declaration on the Human Environment. While this document did not recognise the right to environment as a human right, it did give the necessary impetus to for potential discussions in this regard. Two principles of the Stockholm Declaration are of significance: The first guards the “fundamental right [for man] to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being”  ; the second imposes an obligation on States to take measures to protect the environment from pollution by substances that may affect human health. 
The next significant international instrument is the Rio Declaration on Environment and Development, 1992. This Declaration though does provide for sustainable development and a participatory right where it states that environmental issues are best handled by the participation of all concerned citizens  , largely leans in favour of the right to development. Nowhere does it explicitly guarantee the right to a clean environment.
Though not dealing with the general right to environment, there are several international instruments which deal with specific aspects of environment protection. For instance, the Vienna Convention for the Protection of the Ozone Layer, 1985 and the Montreal Protocol, 1987 call upon nations to take measures to control, minimize and if possible eliminate activities that are likely to cause the depletion of the ozone layer. In a similar vein, the Convention on Climate Change, 1992 and the Kyoto Protocol, 1998 impose on the States the responsibility for the reduction of emissions which cause global warming and climate change. Further, the Movements of Hazardous Wastes and their Disposal (Basel), 1989 calls upon countries to minimise hazardous waste production where possible and also regulate the transboundary movement of such wastes. The United Nations Convention on the Law of the Sea, 1994 mandates equitable and efficient use of marine resources and also their protection and preservation. The widest in ambit seems to be the Convention on Biological diversity, 1992 which requires nations to take steps for towards the conservation of biodiversity, the sustainable utilisation of biological resources and the equitable sharing of benefits.
However, subsequently in 1994, the Ksentini Report emphasized that the right to environment is indeed a human right. Principle 1 of the Draft Principles on Human Rights and the Environment which was annexed to the Report explicitly expressed that human rights and the environment are indivisible.  Thus, this Report heralded a shift in thinking towards the existence of a human right to a healthy and decent environment.  It is therefore imperative to study human rights instruments to discern the existence of a human right to a clean environment therein.
III. The Right to Environment in International Human Rights Law
While existing human rights instruments do not contain an explicit right to a clean environment, scholars have suggested that it must be read into these instruments in order to benefit from the effective and strong institutional structure of human rights instruments. 
At present, a couple of regional treaties identify the right to environment albeit as a third generation human right i.e., Article 24 of the African Charter on Human and People’s Rights (ACHPR) and Article 11 of the San Salvador Protocol to the American Convention on Human Rights. Article 24 of the ACHPR protects the right to environment which should be general, satisfactory and favourable to development. It is evident that this obligation is vague and therefore, scholars argue that it does not have the status of a human right  and at best seeks to prevent pollution  . Second generation rights such as that to a healthy environment and the right to decent living conditions exist. However, these face difficulty in implementation as they are subject to the availability of adequate resources to the State.  Thus, these rights tend to be pushed back in favour of the right to development.
At the international level also, there exists no explicit right to environment. However, it may be read into other rights. For instance, while the Universal Declaration of Human Rights, 1948 does not acknowledge the human right to environment, the same can be read into the right to life and the right to a standard of living adequate for health and well-being.  Similarly, the right can also be read into the inherent right to life protected under the International Covenant on Civil and Political Rights, 1996 (ICCPR). 
It therefore becomes necessary to examine well-established human rights such as the right to life to discern whether they may be read to include the right to a clean and healthy environment. The United Nations Human Rights Committee agrees that that the right to life imposes positive obligations on States to provide safe drinking water and a pollution free environment. Thus, it can be seen that first generation human rights can be used to bring in an implied human right to environment. The author discusses below how the Indian Courts have gone about doing the same.
IV. India: A Case study
Fundamental human rights are guaranteed under Part III of the Indian Constitution. Most of the rights falling under the ICCPR to which India is a signatory would fall within this Part. Rights corresponding to those under the International Covenant on Economic, Social and Cultural Rights however, would fall under Part IV of the Constitution i.e., the directive principles of state policy. Rights under this Part are enforceable and more of the nature of goals sought to be achieved. The right to environment, some conclude would fall under Part IV and not Part III.  Under Part IV, there is a duty upon both the State and the citizens to protect the environment. Article 48A provides that the State should endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.  Article 51A(g) imposes an obligation on the every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.  This imposition of a duty upon citizens is significant as private actions can considerably damage the environment and by virtue of such a provision, the right to environment could be claimed against private actors also.
Encouragingly, the Indian Courts have given environmental issues the serious consideration they call for. In fact, using the writ jurisdiction to approach the High Court under Article 226 or the Supreme Court under Article 32 for the purpose of public interest litigation is now a fairly common practice. Under such litigations, the right to a wholesome environment has been read into the right to life under Article 21 of the Indian Constitution.  One of the most significant cases is Subhash Kumar v. State of Bihar  where the Supreme Court held that the right to live under Article 21 includes the right of enjoyment of pollution free water and air for full enjoyment of life.  Additionally, this case also relaxed locus standi rules in respect of environmental cases. It laid down that any third person who was doubtful about the existence of conditions necessary for a life of dignity at a given place, could approach the Court. While giving its judgment, the Supreme Court used international ‘soft law’ discussed above in its reasoning. In a prior case, it was held that the slow poisoning by the polluted atmosphere caused by environmental pollution should be regarded as a violation of the right to life under Article 21 of the Constitution.  This right has been upheld in several subsequent cases relating to the right to life. In Virender Gaur v. State of Haryana  , the Court linked the dignity of life to a healthy environment stating that, “Environmental, ecological, air, water, pollution etc. should be regarded as amounting to violation of Article 21.…it would be impossible to live with human dignity without a humane and healthy environment”.  Anderson appreciates this practice of the Indian Courts by stating that “probably more than any other jurisdiction on Earth, the Republic of India has fostered an extensive and innovative jurisprudence on environmental rights”. 
India has also incorporated a number of international environmental law principles into its application of the law. For instance, in Vellore Citizens Welfare Forum v. Union of India  , while the importance of industries to the economic development of the country was acknowledged, the Court held that concepts such as sustainable development, precautionary principle and the polluter pays principle which balance the adverse effects of industrialisation should be adopted.  This decision was reaffirmed in Indian Council of Enviro-Legal Action v. Union of India  wherein the Supre Court directed pollution-causing industries to compensate villagers for the harm caused.
However, inspite of the judges’ activism with regard to the right to environment, the reality poses a different picture. For instance in M.C.Mehta v. Union of India  , the Court expressed the need for a ‘minimum environmental standard for industries’. However, the substance of this minimum environmental standard has not been laid down anywhere, thereby showing the prevailing low environmental standards in India. Further, keeping in line with India’s goal of becoming a developed nation, there also seems to be a trend of attempting to balance the right to development with the right to environment, thereby limiting the scope of the right to environment. For instance, in one case, it was held that the State keeping in mind the need for industrial growth and development must balance the need to tap mineral resources for industrial growth with the preservation of ecology, the environment, etc.  Thus, it remains to be seen how the rights to environment will be interpreted in the present times, in light of India’s rapid industrial growth.
An analysis of the prevailing law makes it clear that the right to environment as a human right exists, if at all, in a very weak form. International instruments such as the Stoclholm Declaration and Rio Declaration which emplicitly recognise these rights are sof law and therefore not bindling legally. As for the Draft Principles laid down in the Ksentini Report, they have not yet entered into force. Thus, in a need to ensure stricter implementation, there has been a move towards reading the right to environment in existing human rights instruments such as the ICCPR. However, such a reading would require interpretation by Courts and this is limited in the international arena as far as environmental rights are concerned. The possibility of reading in this right into other human rights must therefore be studied in a domestic context. The Indian case study shows that it is indeed possible, with a little judicial creativity, to widen the scope of protection of human rights such as the right to life to include the right to a healthy environment given the close linkage of the two. The Courts while admitting that adverse effects on the environment are inevitable to development, have emphasized the need to balance the two by using concepts such as sustainable development, the precautionary principle and the polluter pays principle. Thus, in light of the lack of international law in this regard, other domestic jurisdictions must be urged to learn from the Indian example and incorporate the right to a healthy environment within other human rights with a broader ambit, while at the same time not decreasing efforts at the international level to conclude an understanding on the protection of the right to environment as a human right with strong enforcement mechanisms.
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