Sharn Kaur Gill, Hertfordshire Law School Student
The importance of ecological conservation to better the quality of human life is indisputable; as a result, the issue of environmental protection and environmental rights have become an exceedingly significant global discussion. Among global protection programs is the debate of the human right to a healthy environment. Although it does not currently feature as a fundamental human right according to the Universal Declaration of Human Rights, the right to a healthy environment has been a catalysis in the protection of the existing rights. This right has been included in the national constitutions of over 90 nations in some form or another. Due to an increase in global awareness and pushes from international human rights courts it will be argued that the right to a healthy environment is a fundamental human right and should be recognized as such.
‘There is no environment ‘out there’ separate from us. The environment is embedded in us. We are as much a part of our surroundings as the trees and birds and fish, the sky, water and rocks.’ The idea that we are one with our environment has been the foundation for existence for the indigenous peoples of North America. This concept of environmental whole-ness resonates into ecological studies as ‘ecosystem services’; there are amenities provided to humans from the earth’s natural ecosystem. Direct effect ecosystem services are the easiest to perceive; they include food, clothing, medicines, shelters and natural energy sources. A stunning example of the need for conservation of the environment comes from a small species of flowering plant found on the island of Madagascar, known as Catharanthus roseus or Rosy Periwinkle. This plant provides the basis of the medications we know as Vincristine and Vinblastine; used to treat childhood leukaemia and Hodgkin’s disease respectively.
The importance of ecological conservation to better the quality of human life is indisputable; as result, the issue of environmental protection and environmental rights have become an exceedingly significant global discussion. Among global protection programs is the debate of the human right to a healthy environment. Although it does not currently feature as a fundamental human right according to the Universal Declaration of Human Rights, the right to a healthy environment has been a catalysis in the protection of the existing rights. This right has been included in the national constitutions of over 90 nations in some form or another. Due to an increase in global awareness and pushes from international human rights courts it will be argued that the right to a healthy environment is a fundamental human right and should be recognized as such.
- ENVIRONMENTAL RIGHTS AND INTERNATIONAL LAW
The first substantial blip on the radar of international environmental law occurred during the 1972 United Nations Conference on Human Environment (UNCHE) when the Stockholm Declaration was formed. The declaration symbolized the beginning of changes in international policy-making and a much wider global shift towards a green initiative. Environment as a key proponent of human rights was brought to the international forefront through Principle 1 of the 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’
The explicit connection between fundamental human rights and the preservation of the environment, at an international level, was paramount in starting discussions about the right to a healthy environment. The significance of imposing the responsibility to protect the future environment, on man, cannot be overlooked; this forces society to take preventative and rehabilitative measures along with the reduction of present destruction of the biosphere. It would be ill-advised to not discuss that the notion of ‘permanent sovereignty’ was reinforced by Principle 21 of the Stockholm Declaration; This principle informs on a State’s sovereign control over its natural wealth and resources, so long as they are acting in the best interests of their citizen and overall global development. Although the principles set out in the declaration were not legally binding they created the parameters in which States could formulate public policy regarding environmental protection and rights. The impact of this declaration can be seen in the creation of United Nations Environment Program – an organ of the United Nations dedicated to the environment.
Perhaps the most impactful result of the UNCHE was the consequent meeting of 172 world nations in Rio at the 1992 United Nations Conference on Environment and Development (UNCED, Earth Summit). During this conference, the Rio Declaration was created to advance and supplement the Stockholm Declaration with advancements in science and technology and incorporating sustainable development. The declaration proclaimed: ‘Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’ By acknowledging sustainable development, this declaration brings forward the idea that developing nations are less likely to comply with environmental regulations when they impede the development and progression of a nation. The push for sustainable development accounts for the global protection of the environment for future generations by encouraging states to share knowledge and technologies with one another.
Since the Rio Declaration, there have been significant innovations in the scientific understanding of the environment and an evolution of international environmental laws. These legal changes include states taking the initiative to incorporate policies that govern acceptable regional environmental standards as they comply with the international protocol. A prominent example of this can be seen in the North American Agreement on Environmental Cooperation (NAAEC); this agreement encompasses the environmental and ecological concerns of Canada, Mexico and the United States. Insurance for complying with this agreement is made by potential detrimental economic effects possible from political fallout, including impairment of the North American Free Trade Agreement.
It is evident the international attention has been brought to environmental concerns globally, however no notion of including environment as a fundamental human right appears to be on the United Nations’ strategy, following the Earth Summit.
III. AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS
The African Charter on Human and Peoples’ Rights (ACHPR, Banjul Charter) was adopted in 1986 as a regulator of human rights as they pertain to the nations of the, then, Organization of African Unity. The Charter identifies and protects the rights of individuals’ as well as peoples’ rights as a whole. Article 24 of the charter provides: ‘All peoples shall have the right to a general satisfactory environment favourable to their development.’ This article defines the right to a healthy environment as a human right, subject to the populations within its governance.
The case of Social Economic Rights Action Center and the Center for Economic and Social Rights (SERAC) and another v Nigeria defined the scope and legal interruption of the Banjul Charter, specifically in relation to the right to a satisfactory environment. This case brought to the African Court on Human and People’s Rights (African Court) by two NGO on behalf of the Ogoni peoples; the Ogoniland oil reserves were exploited by the Nigerian government for economic gain at the cost of disproportionate pollution and habitat devastation. These environmental catastrophes resulted in determents in agriculture due to the, now, usable land. The citizens also alleged that they experience negative health effect due to the actions of the government and no preventative or rehabilitative actions were taken to remedy the health complications. The African Court augmented Article 24 of the ACHPR in this case when stating:
‘[article 24] imposes clear obligations upon a government. It requires the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources.’
This expansion on Article 24 clearly shows the that the courts interpret the law to impose responsibility on the state to maintain sustainable development which does not impact the right to life or the right to a healthy environment, of its citizens.
Presently, the ACHPR governs all 55 nation states of the African continent and consequently all of these nations recognize and legally codified the right to a healthy environment as a human right.
- INTER-AMERICAN COURT OF HUMAN RIGHTS
A more recent and radical development in environmental law occurred on 7 February 2018, in an Advisory Opinion (AO) released by the Inter-American Court of Human Rights (IACtHR); the AO came as a response to Columbia’s request for an interpretation of the American Convention on Human Rights (ACHR), in March 2016. Although not explicitly stated, the request made by Columbia has undertones pertaining to its quarrel with Nicaragua. Nicaragua plans to develop a possible transnational canal system; the environmental damage the biodiversity loss would be most substantive along the coastal populations of the Caribbean.
In addition to this proclamation, the AO remarked that where transboundary damages where concerned ‘the exercise of jurisdiction arises when the state of origin exercises effective control over the activities carried out that cause harm and consequent violation of human rights.’ This transboundary approach forces States to expand their scope for environmental damages and sustainable development from a local regional range to a global range. Additionally, the concept of ‘effective control’ holds States legally accountable for their destructive actions, even if the resultant ecological damage does not occur within its physical boundaries. The application of this ruling would subsequently hold Nicaragua legally accountable for the violation of the fundamental right to a healthy environment.
This AO is the first international court ruling which segregates and defines the right to a healthy environment as its own independent human right. The AO explicitly states that the right to a healthy environment is ‘fundamental to the existence of humanity.’ The implications of this decision are significant and far-reaching; decisions made by this court carry a huge weight in the further development of international law. The Center for International Environmental Law’s Carla Garcia Zendejas commented ‘this historic precedent will bolster communist seeking justice not only in Latin American but around the world.’
- ENVIRONMENTAL RIGHTS AND ECHR
The European Convention on Human Rights (ECHR) does not explicitly protect the right to a healthy environment, however, there are numerous cases in which rights protected by the ECHR are used as a vehicle for the protection of the environment. An exemplary case of this is Lopez Ostra v Spain, in this case, Mrs Lopez Ostra experience a violation of her right to private life due to the pollution created by a water treatment plant by her home. The Court held that there had been a violation of article 8 of the Convention; this additionally protected Mrs Lopez Ostra’s privilege to a healthy environment.
The United Kingdom being under the jurisdiction of the ECHR does not recognize the right to a healthy environment as a fundamental human right for its citizens.
It is abundantly clear that the environmental rights are human rights and should be recognized as such, by all international human rights courts. Judicial pressures from smaller human rights courts and human rights cases involving environmental components represent the ‘foot in the door’ for the right to a healthy environment. With the changing global climate and the clear shift towards environmental protection and awareness, the protection of this right is paramount in progressing science, technology and politics.
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  AHRLR 60 (ACHPR 2001).
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  ECHR 46.