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International human rights law and environmental problems
An introductory note on a human right to
8. The human rights system as a conceptual framework for environmental law
9. The contribution of international human rights law to environmental protection, with special reference to global environmental change
An introductory note on a human right to environment
It has been stressed that environmental law derives from the common interest of mankind. So does international recognition of human rights and freedoms. It is thus normal that a link was established between the two as early as 1972, by the Stockholm Declaration itself:
Man has the fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignit and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations (Principle 1).
Thus, the "right to environment" was proclaimed at the beginning of the "environmental era" at a worldwide level. In addition, as it is formulated, this principle includes all the essential elements of both new fields of international law. It is very clearly linked with human rights, both civil and political (freedom, equality, dignity), and economic, social, and cultural rights (adequate conditions of life, wellbeing). It also warns that everybody has a responsibility for the protection and the improvement of the environment. Finally- and this is new in the human rights language - it also opens a time perspective by speaking of future generations.
Of course, the Stockholm Declaration, whatever its impact could have been, is legally only a non-mandatory document. So is the World Charter of Nature, solemnly proclaimed by the UN General Assembly on 28 October 1982, which elaborates further on the rights and duties resulting from the necessity to protect the environment.1 Legal provisions with a mandatory character have appeared in a very significant way in regional conventions aiming at the protection of human rights. The 1981 African Charter of Human and Peoples' Rights expressly recognizes the rights of "all peoples" to a "generally satisfactory environment favorable to their development."2 Inside another human rights protection system, the American Convention, an Additional Protocol to the Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (Protocol of San Salvador), provides in its Article Il: "1. Everyone shall have the right to live in a healthy environment and to have access to basic public services. 2. The States Parties shall promote the protection, preservation and improvement of the environment."3 Thus the "right to environment" has been recognized in positive international law. It has also been proclaimed in national legislation: at present, clauses related to environmental protection - either as a duty of the state or as an individual right or both - figure in 44 national constitutions, in that of a dozen state members of federal states, and in general laws of several countries.4
Although the formulations are different, in all these cases one may speak of a right to environment. Indeed, the drafting of most environmental conventions guaranteeing fundamental rights and freedoms shows that very often such rights and freedoms are proclaimed not only in an abstract form, but also by declaring that it is the duty of the state to protect them. As an example one may quote the formulation of the most fundamental of all human rights, the right to life, as it figures in the UN Covenant on Civil and Political Rights, Article 6: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life."
Quite a few other provisions using the same drafting technique for proclaiming individual rights could be quoted, especially in the realm of economic, social, and cultural rights. It may thus be considered that whatever the formulation of the principle is, an individual right to the protection of the environment can be deduced from it.
The comparison of this new human right with formerly recognized ones helps to determine its contents. Indeed, it has been objected that the terms "right to environment" are too vague to allow the utilization of judicial means of redress: the very word "environment" can hardly be defined, even if it is generally qualified ("adequate," "satisfactory, " "healthy," "ecologically balanced, " etc.). However, such a situation is not exceptional in the field of human rights, where concepts such as "ordre public," "national security," "morality" are to be given an exact interpretation. Moreover, one should not forget that an essential aspect of protecting human rights is the creation of procedures that permit ensuring respect for these rights. The example of one of the most fundamental rights, that of liberty and security of the person, as formulated in different conventions,5 shows that this right, an abstract concept that is not easy to translate into substance by other means, establishes itself in procedural guarantees. That which the law assures is the existence and proper functioning of certain procedures that constitute protection against arbitrary action, preventing the organs of the state from infringing upon the liberty and security of its citizens. The right to environment similarly can be interpreted, not as the right to an ideal environment, difficult if not impossible to define in the abstract, but as the right to have the present environment conserved - protected from any significant deterioration - and improved in some cases. Thus, it signifies in reality the right to the conservation of the environment, conservation including protection and improvement.
So conceived, the right to environment is as concrete in its implications as any other right guaranteed to individuals and groups. It includes procedures assuring that every individual is informed on time of major changes that could harm his or her environment; he or she is enabled to participate in the decision-making process and has access to adequate means of redress, either for the violation of these rights or in order to obtain satisfaction if his or her environment has already suffered damage.
One of the aspects of this new right, the right to participate, also presumes an active attitude on behalf of the citizens, and even more, a citizen's duty to protect the environment. Each person has the right to have his or her environment protected, but is also obliged to contribute to the common effort. Of course, speaking of individuals includes also groups of individuals, such as associations or interest groups. This obligation is even more far-reaching than the general obligation that results from the conventions recognizing human rights, i.e., the duty to respect the fundamental rights and freedoms of other individuals, since it emphasizes that citizens are not passive beneficiaries, but partake of responsibilities on the formation of all community interests.
Another similarity between human rights in general and environmental protection is the role played by associations, both inside states and at the international level. However, as far as the latter is concerned, their action is different. Indeed, while human rights groups, which have taken an active part in the surveillance of the application of human rights rules, are more numerous and represent different points of view or even different interests, international environmental associations seem to be less numerous and better coordinated. Still more important is that there exist in this field two particularly important non-governmental organizations: the World Conservation Union (IUCN, from its former name, International Union for the Conservation of Nature and Natural Resources), in which also participate about 120 countries either by official organs or otherwise, and the Worldwide Fund for Nature (WWF). While the second is mainly active in fund-raising for different actions in order to protect the environment, the first actively participates in the elaboration of international legislation and in the drafting and disseminating of programmes of action.
Because of global change, the role of such bodies should be reinforced. Increasingly, representatives of international organizations are included in national delegations to official international meetings. Inside states such organizations also play an important role in the surveillance of the implementation of international rules protecting the environment. A step further should be made in introducing them officially in the international procedure of dispute settlement.
International dispute settlement is a favourite subject of the doctrine of international law. A ritual clause in studies and even in some international treaties related to environmental protection is the reproduction of the list of Article 33 of the UN Charter: disputes arising in this field should be resolved by negotiations, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or any other peaceful means. In spite of its exhaustive character, such lists do not seem to be very useful, since the means that they suggest are not used in practice. Instead, specific techniques of surveillance on the implementation of treaty obligations, mostly provided for in the respective treaties themselves, are utilized. Now, real progress in this field would be to create mechanisms of surveillance of state obligations that the governments can really accept. In other words, "soft" means of settlement should be combined with a larger place given to individuals and nongovernmental organizations, following the pattern of existing international mechanisms in the realm of human rights. One should recall here the proposals for strengthening the legal and institutional framework formulated by an international legal-expert group of the World Commission on Environment and Development.6
The mechanism that could be set up on the basis of these proposals would consist in a High Commissioner for Environmental Protection, appointed by the UN General Assembly, with some functions similar to an "ombudsman" and "trustee" for environment. He could receive and assess communications from states, but also from private organizations and individuals, concerning compliance with or violation of international legal rules related to environmental protection. After a first assessment, when appropriate, he could submit any of such cases for consideration to a special UN Commission. The latter would be another independent institution, composed of experts, elected by the UN General Assembly. It should examine the communications that the High Commissioner transmits to it and should decide whether a state has violated any international obligation related to environmental protection. Its findings would be transmitted to the concerned state and to the author of the communication and, if no compliance with the violated rules was assured by the concerned state, a report including the decision would be made public and transmitted to the UN General Assembly or any other competent body.
Such organs could also be invested with other functions. Also, the High Commissioner could have special responsibilities regarding the protection and use of areas beyond national jurisdiction, and for representing and protecting the interest of future generations. The Com mission should receive and review regular reports from states and from relevant international organizations, both governmental and non-governmental. Together with the High Commissioner, it should also formulate recommendations and proposals for improved implementation of existing international rules, or even for the drafting of new rules and norms.
Of course, another step, becoming more-and more necessary, is the drafting of a general convention on environmental protection, following the example of the two Covenants on Human Rights. Some proposals tend to the establishment of an international court specialized in environmental protection. In the present state of international law, one may ask what legal rules such an international jurisdiction could apply. But a general international convention on the protection of the global environment would also definitively designate the place of environment in our value system, as high as human rights have been placed by the successive international instruments. This could be one of the positive consequences of global change.
1. UN General Assembly, Resolution 37/7.
2. Article 24, African Charter of Human and People's Rights (Banjul, 20 June 1981), 21 I.L.M. 58 (1982).
3. Protocol adopted at San Salvador on 18 Nov. 1988. 28, I.L.M. 698 (1989).
4. Extracts of these provisions are reproduced in E. Brown Weiss, In Fairness to Future Genorations, 297 (Transnational/United Nations University). See also Unesco, Environnement et droits de l'homme, 152 (P. Kromrek, ea.. Unesco. 1987).
5. Article 9 of the UN Covenant on Civil and Political Rights, Article 5 of the European Convention on Human Rights, Article 7 of the American Convention on Human Rights, Article
6 of the African Charter of Human and People's Rights.
6. Experts Group on Environmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development, Legal Principles and Recommendations, 14 (Martinus Nijhoff, 1988).
8. The human rights system as a conceptual framework for environmental law
Environmental rights in the context of the natural order
Duty to future generations
The concept of "the common concern of mankind"
The protection of indigenous peoples
Environmental rights and international refugee law
Substantive norm-making and enforcement procedures
The increasing emphasis on environmental protection and ecological preservation makes it eminently desirable to analyse the conceptual values in which environmental law is based. The mounting interest evidenced in scientific, legal, political, and governmental circles in the various dimensions of environmental law constitutes sufficient justification for this exercise.
Nature has always exercised a mysterious fascination for man. Primitive man regarded the elemental forces of Nature with awe and respect, and identified them as deities to be feared and propitiated. With time man began to acquire a more intelligent understanding of the relationship between him and the natural order. In some early civilizations and ancient cultures, religious piety, philosophical principles, and moral standards drew their values from that relationship. Some others focused on man as the reason for all creation. The earlier Greco-Christian attitude was that "since everything is for man's use, he is at liberty to modify it as he bill."1 This belief betrayed man into a false assumption of paramountcy over the natural order. He misconceived his stewardship of the planet for an absolute proprietorship.2 In the dynamics of daily existence, human life has been lived since in the dimensions of an anthropocentric perception that treats the rest of Creation as bonded in subservience to it. In harsh paradox, civilized man has continued in a state of alienation from Nature, abusing and degrading the planet's ecological system. We realize now that the resources of the planet have been ruthlessly yoked to human needs, and exploited with thoughtless extravagance and uneconomic waste, through methods that are altering irrevocably our existing natural heritage. The reckless speed with which this destruction proceeds issues from socio-economic pressures compounded by a rapacity for short-sighted gains. It has reached the point when the quality and condition of human life is threatened and has put into question the very survival of the human race.
During the latter half of this century, the enormous power provided by the advanced sciences and high technology has given an impetus and a momentum to environmental problems that enable them to influence living conditions in distantly separated territories. Environmental issues now call for global policies and global action. Solutions that once found adequate expression in state law now demand a wider frame of reference. For the first time, the human mind is engaged with the task of identifying areas of environmental deterioration on a global scale, of determining the nature and consequences of the damage apprehended or suffered, and of considering measures to prevent or repair it.
A single unified global approach is quite often not possible in a pluralistic world community, and there are bound to be several areas where individual evaluation on the basis of the same criteria in differently constituted economic, social, and cultural societies produces remarkably different results.3 Environmental concerns and policies will vary, for example, with the degree of development attained by the particular society, developed countries finding it easier to emphasize environmental protection over development, while developing countries ordinarily prefer to stress development over environmental concerns. Changing circumstances with passing time have often led to a reorientation of perspectives within the same country. With insights obtained during the Stockholm Conference of 1972, the less-developed countries began to favour environmental protection, convinced that it could be incorporated into their economic development programmes. Contrariwise, the developed countries began to lose their enthusiasm for environmental projects as the intractability of some environmental problems became clearer.4
The fundamental significance of environmental protection in shaping the quality of life of a people was reflected, from the commencement of the second half of this century, in the enacted constitutional law of a large number of countries, which include both developed and developing nations.5 There is a growing volume of environmental legislation and an increasing number of environmental protection agencies.
And as the gap closes between the developed and the developing countries in regard to the significance of the environmental philosophy, an enlarging consensus has become possible in the adoption of global policies and programmes providing for environmental protection.
Environmental law is concerned with our natural heritage and our cultural heritage. The natural heritage includes the atmosphere, the oceans, plant and animal life, water, soils, and other natural resources, both renewable and exhaustible. Our cultural heritage includes the intellectual, artistic, social, and historical record of mankind.6 Natural heritage is linked with cultural heritage, the survival, protection, and progress of both being interdependent. Man is the bridge between the two. Cultural heritage is the product and record of human perceptions of the natural order through visual, ethical, or mystical perspectives. It issues from man's vision of his natural heritage. In turn, the protection and preservation of man's natural heritage depends on human attitudes emanating from cultural, ethical, and religious beliefs.
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