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VII. The recognition of the right to a healthy environment: The concern for environmental protection in international human rights instruments

A point of contact between human rights protection and environmental protection can in our day be detected in the concern for environ mental protection in international human rights instruments and, reversely, in the concern for human rights protection in international environmental law instruments. The former can be discerned in human rights instruments at both regional and global levels. The recognition of the right to a healthy or satisfactory environment in two instruments recently adopted in the American and African continents, respectively, provides a pertinent illustration in that regard. Let us turn to one and the other, before passing on to the global level.

In the American continent, the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, besides providing inter alia for the right to health (Article 10), the right to food (Article 12), and the right to just, equitable, and satisfactory conditions of work (so as, e.g., not to prejudice health - Article 7), expressly states (Article 11) that

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.

We have here the express recognition, in a human rights instrument the 1988 Protocol to the American Convention - of the human right to a healthy environment.

In the travaux préparatoires of the Protocol,150 it was considered that the "concept of environment" had a sufficiently established meaning, with precedents in international instruments, so as to render it appropriate to retain and assert the norms (of Article 11) on the right to a healthy environment, strengthened by the provision whereby it was incumbent upon the States Parties to promote the protection, preservation, and improvement of the environment.151 Hence the norm of Article 11 of the Protocol, as adopted in 1988. But the Protocol is not the only modern human rights instrument to contain a provision of the kind.

In the African continent, the 1981 African Charter on Human and Peoples' Rights, likewise, provides (Article 24) that "all peoples shall have the right to a general satisfactory environment favourable to their development." The acknowledgement, by the African Charter, of the right to a "general satisfactory environment," as peoples' right, takes place in view of the recognized duty of states to ensure the exercise of the right of development. Furthermore, the Charter's assertion of the individual's right "to enjoy the best attainable state of physical and mental health" as well as of the states' duty "to protect the health of their people" (Article 16) serves as a reminder to States Parties "to extend the benefits of their resources to the generality of their citizenry rather than to a minority."152

At the global level, the 1966 UN Covenant on Economic, Social, and Cultural Rights recognizes inter alia "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health" (Article 12). It further recognizes "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions" (Article 11). In 1989 the UN Sub Commission on Prevention of Discrimination and Protection of Minorities adopted a decision (n. 19891108) to have a note prepared on the methods whereby a study on the problems of the environment and its relation to human rights could be made.

The matter has been before the UN Commission on Human Rights, at its current XLVI session (1990). The Commission has just considered a draft resolution co-sponsored by 17 states on "Human Rights and the Environment"; the document relates the realization of the right to health recognized in Article 12 of the Covenant on Economic, Social, and Cultural Rights (supra) to the necessity "to take the steps necessary for the improvement of all aspects of environmental and industrial health.''153 Furthermore, the document expresses the belief 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.''154

There are signs that the relationship between environmental protection and human rights protection will soon be attracting considerably more attention than it has until now, in the ambits of the United Nations and of regional fori. In this respect, the attention once drawn, in the European continent, by Steiger's project, to the protection of individuals also against the acts of private persons (Drittwirkung, see section XI, infra) seems deserving of attention for future consideration of a more perfected formulation, the articulation and implications of the right to a healthy environment.

This seems so given the complexity of the legal relations involved herein. The right to a healthy environment requires the protection against harmful acts of states as well as of private persons, and imposes duties on states, groups, or collectivities and individuals.155 Not only the states but also groups and individuals are called upon to intervene in the implementation of that right. It has been commented that the right to a healthy environment "sort les citoyens d'un status passif de bénéficiaires et leur fait partager des responsabilités dans la gestion des intérêts de la collectivité tout entière."156

Environmental questions, by their very nature, are, in their complexity, surrounded by interests and conflicts that are often "diffuse and fragmented." It is not surprising that they demand environmental decisions that "involve a complex web of actors: legislators, the administration, judges, the polluter, the victims, interest groups, and those that are economically dependent on the polluters."157 This may pose difficulties for the implementation of the right to a healthy environment; yet we need to count on enforcement procedures proper to human rights protection, possibly adapted and extended or perfected.

VIII. Concern for the protection of human rights in the realm of international environmental law

Just as there is concern for environmental protection in international human rights law (supra), there is likewise concern for human rights protection in the realm of international environmental law. In a way, concern for human rights protection underlies environmental law instruments to the extent that these latter aim at the protection of the environment, which will ultimately benefit human beings and man kind. Besides that, explicit references with a direct bearing on human rights protection can be found in the domain of international environmental law. The 1972 Stockholm Declaration on the Human Environment, for example, opens its preamble with the acknowledgement that man is both "creature and moulder of his environment," and that the natural and the man-made aspects of man's environment are "essential to his well-being and to the enjoyment of basic human rights - even the right to life itself" (§1).158 Environmental protection is also linked to the "well-being of peoples" (§2). Thus, environmental protection and human rights protection are to be brought together. Principle 1 of the Stockholm Declaration provides an emphatic illustration of concern for human rights protection, in determining 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...."159

The 1982 World Charter for Nature warns in its preamble that, as mankind is "part of nature" and "life depends on the uninterrupted functioning of natural systems" (§2 [a]), the preservation of the species and ecosystems is to be ensured for the benefit of present and future generations" (§5).160 In its dispositive part, the Charter further warns that "man's needs can be met only by ensuring the proper functioning of natural systems" and by respecting the principles it sets forth (Principle 6); the Charter then provides for the human right to participate in the formulation of decisions of direct concern to the human environment and for the human right of access to means of redress when the human environment has suffered damage or degradation (i.e., rights of participation and to an effective remedy, Principle 23).161

The World Commission on Environment and Development, which reported to the UN General Assembly in 1987, proposed a set of legal principles for environmental protection and "sustainable development" (this latter defined as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs").162 The proposed legal principles, to serve as a basis for a future global convention on environmental protection and sustainable development under UN auspices, start with the assertion of the following "fundamental human right" (Principle 1): "All human beings have the fundamental right to an environment adequate for their health and well-being."163

The Brundtland Commission also considered the recognition of "the right of individuals to know and have access to current information on the state of the environment and natural resources, the right to be consulted and to participate in decision-making on activities likely to have a significant effect on the environment."164 Of the 22 Principles proposed by the Commission and prepared by its Group of Experts on Environmental Law, mention should here be made also of the recognition of the right to legal remedies and redress for those "whose health or environment has been or may be seriously affected";165 all such persons are to be granted by states "equal access, due process and equal treatment in administrative and judicial proceedings" (Principle 20).166

While "in primitive law harmony between man and nature was to be achieved through rules protecting man from nature and securing him nature's benefits," in modern times the growing awareness of the exhaustibility of resources has led to developments in environmental protection "designed to protect nature from man."167 However, these latter have taken place, it may be added, for the benefit ultimately of human beings in their environment, for the survival of mankind, of the human species. It is thus a question of protecting man from man himself, given his alarming capacity of destruction. From the perspective of the interrelationships between human rights protection and environmental protection, the "anthropocentric" outlook thus could hardly be minimized or discarded.

IX. Concern for the protection of the environment in the realm of international humanitarian law

It was not until recently that concern for the protection of the environment was manifested also in the realm of international humanitarian law. Two key provisions were inserted to that effect into the 1977 Additional Protocol I to the 1949 Geneva Conventions, namely, Article 35(3) and Article 55. Article 35(3) provides that "It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread' long-term and severe damage to the natural environment." And Article 55 states:

1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.

2. Attacks against the natural environment by way of reprisals are prohibited.

As aptly pointed out by A. Kiss, while Article 35(3) appears under the "Basic Rules" of Part III (methods and means of warfare, combatant and prisoner-of-war status) of the Protocol, thus having a wide scope, "applicable to all the situations envisaged by the Protocol," Article 55 does not appear under the "Basic Rules" of Part IV (civilian population) and is concerned with the protection in particular of the civilian population and objects. It has thus a more circumscribed scope, and not surprisingly, it follows a rather "anthropocentric" method.168 One and another have in mind the damages that may threaten the health and survival of the population, thus not taking the environment as "une valeur intrinsèque" in itself, but rather "en fonction de la protection des humains."169

In fact, it could hardly be otherwise, if one is to approach the protection of the environment from the angle of its relationship with a branch of law deeply marked by the sentiment of humanity and turned to the respect and protection of victims of war (in enemy hands), the permissible methods and means of combat, and the international protection of human rights in armed conflicts. The temporal dimension is also present here, as inherent in this humanitarian goal is the ultimate and predominant objective of the very prevention of armed conflicts, to the benefit of mankind and the advances of civilization.170

What in sum one purports to protect here is ultimately mankind itself, and, in a sense, a sort of common heritage of mankind. Meyrowitz well identified in the concept of "conservation de l'humanité" the foundation of international humanitarian law;171 the same, it may be added, holds true of environmental law, at least from an "anthropocentric" (rather than a "cosmic") approach, ineluctable here. The ultima ratio legis, as it stands, is common to one and the other: survival of mankind (or, more precisely: in international human rights law and refugee law, of man - the human person - and mankind; in international humanitarian law, of mankind as such; in international environmental law, of mankind in its environment). If the safeguard of human rights - in times of peace as well as here in times of armed conflicts - requires environmental protection, and a clean and healthful environment, there is then an identification of the conceptual ultima ratio legis of one and the other (human rights protection lato sensu and environmental protection), which thus appear interrelated.

Turning back to the Additional Protocol I of 1977, a parallel has been drawn, with respect to the prohibition of methods or means of warfare having widespread, long-term, and severe damage to the environment, between its Article 35(3) and the 1977 UN Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques.172 The concept of "environmental modification techniques" is found in Article 2; attention should also be paid to the 1980 Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons (especially its Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons).

The concept of the natural environment enshrined in Article 55 of the Additional Protocol l of 1977 is to be understood in its "widest sense," so as to cover "the biological environment in which a population is living"; Article 55 stresses the securing of the survival of the population when addressing itself to damages to the environment, and even expressly refers to "health," bearing in mind acts that could seriously prejudice health.173 One could venture to say that the right to life, the right to health, and to some extent the right to physical in appear as "bridges"' between the domains of international human rights law, humanitarian law, refugee law, and environmental law. The right to life, in particular, appears as a fundamental right that is at the basis of the ultimate ratio legis of the above-mentioned domains of international law turned to the protection and survival of the human person and of mankind.

Two other provisions of Protocol I of 1977 have an indirect bearing on the purposes of the present study, namely, Articles 56 and 36. Article 56 provides for the protection of works and installations containing '`dangerous forces" (e.g., dams, dykes, nuclear electrical generating stations).174 And Article 36 provides for the obligation of the High Contracting Parties to determine the possibly unlawful character of certain new weapons (existing and future weapons that may cause unnecessary suffering or have indiscriminate effects); in the preparatory work of this provision the experts were concerned (as to future weapons) with "geophysical, ecological, electronic and radiological warfare as well as with devices generating radiation, microwaves, infrasonic waves, light flashes and laser beams."175 Concerned with the problem of the technological development of armaments and the indiscriminate character of combat, the obligation enshrined in Article 36 purported to ensure that (new) methods or means of combat would not be adopted without the issue of legality being carefully considered: hence the obligation of the Parties to determine the legality or illegality of the use of "any new weapon introduced into their armed forces," which implied "the obligation to establish internal procedures with a view to elucidating the problem of illegality."176

Unlike Protocol I, the Additional Protocol II of 1977 does not contain provisions directly concerning the protection of the environment, but it does contain provisions that have an indirect bearing on the purposes of the present study, namely, Articles 14 and 15. Article 14, which prohibits the starvation of civilians as a method of combat, further prohibits therefore the destruction to that end of "objects indispensable to the survival of the civilian population, such as food stuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works." And Article 15 prohibits attacks on works or installations containing "dangerous forces" (e.g., dams, dykes, nuclear electrical generating stations) if such attacks could release dangerous forces thereby causing "severe losses among the civilian population."177

Last but not least, it should be added that the World Charter for Nature, adopted by the UN General Assembly in 1982, states that "nature shall be secured against degradation caused by warfare or other hostile activities" (§5), and that "military activities damaging to nature shall be avoided" (§20).178 From all the above-mentioned provisions it can hardly be doubted that the protection of the environment has become a matter of concern also in the realm of international humanitarian law.

X. Protection of the environment and international refugee law

1. Protection of victims of environmental disasters under refugee law

Some recent developments in international refugee law at the regional level, in particular with regard to the current Central American crisis, are worthy of attention. In order to tackle the problem of massive flows of refugees in the Central American area, the UN High Commissioner for Refugees (UNHCR) deemed it "necessary to consider enlarging the concept of a refugee." To that effect it adopted criteria on the basis of the precedent of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, Article 1(2) - adopted precisely to face a similar problem in Africa - and of the doctrine upheld in reports of the Inter-American Commission of Human Rights.179 A resulting concept was reached at the UNHCR Colloquy of Cartagena de Indias of 1984,180 embodied in the document that came to be known as the "Cartagena Declaration on Refugees."

Therein the definition or concept of a refugee recommended for use in the Central American region is one that in addition to containing the elements of the 1951 Convention [Relating to the Status of Refugees] and the 1967 Protocol [Relating to the Status of Refugees], includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.181

The situations referred to above, it can be assumed, are caused by man, or would in principle have to be caused by man, so as to be encompassed by the new, amplified concept of a refugee recommended by the Cartagena Declaration. It can promptly be asked, What does the expression "other circumstances" cover? Would, or could, it also comprise, e.g., victims of (man-made) environmental changes or accidents? Before turning to this point, it should be added that the Cartagena Declaration was followed, and dwelt upon, by two other documents. The first one is the 1987 Report of a Group of Experts that met at UNHCR headquarters in Geneva to examine possible solutions to the problems of Central American refugees.

The 1987 Report, after referring to the 1984 Cartagena Declaration as a regional expression of refugee law (which reflected international practice on the matter and could thus lead to the crystallization of a "regional custom"), warned that the refugee problem in Central America was inserted into a "wider context of desplazamiento pablacional."182 The Report inter alia referred to measures aiming at the prevention of causes that originated current massive flows of Central American refugees; those measures concerned the settlement of the conflicts and crisis in the region on the basis of the application of the principles of international law proclaimed in the UN Charter, the consolidation of the processes of democratization in the region, the respect for the observance of human rights (in particular those recognized in the 1969 American Convention on Human Rights), and the promotion of economic and social development in the region.183

The second and more recent document is the one submitted by a Committee of Legal Experts to the International Conference on Central American Refugees (CIREFCA) in 1989,184 titled "Principles and Criteria for the Protection of and Assistance to Central American Refugees, Returnees and Displaced Persons in Latin America." The document was advanced as a general framework for assistance to the states concerned in their treatment of refugees, returnees, and displaced persons in the Central American region.

The 1989 document, after recalling the "fundamental importance" of the Cartagena Declaration despite its not being technically a legally binding instrument,185 then provides an interpretation of the expanded concept of a refugee - passage quoted above - advanced by the 1984 Cartagena Declaration (supra). According to the 1989 document, the expression "other circumstances which have seriously disturbed public order" ought to cover "the result of human actions and not of natural disasters." Moreover, "economic migrants" should not be confused with "victims of natural disasters"; these latter - the 1989 document adds- do not qualify as refugees, unless there occur "special circumstances" closely linking them to the refugee definition.186

Might it here not be added that a distinction should be borne in mind between natural disasters and environmental disasters? The victims of "pure" natural disasters (e.g., volcanoes, lightning, earthquakes, hurricanes, tidal waves, etc.) would remain outside the scope of the 1984 Cartagena definition. But the victims of environmental disasters (caused by human error or negligence, e.g., nuclear disasters, international water-pollution accidents, oil spills, forest fires, droughts as a consequence of climatic change, etc.) could fall under the "other circumstances" provided for by the 1984 Cartagena definition (supra), and thus benefit from refugee-law protection. It could in this connection be argued that climatic change is not only a "natural disaster," or not purely one, as it presents human intervention;187 the victims of climatic changes (e.g., affecting the production of food) could thus arguably count on the protection envisaged herein.

Displaced persons in different circumstances constitute a category that requires careful attention and not seldom they are in greater need of protection than the refugees who have left the country - as admitted by the 1989 document itself.188 There is, furthermore, a close link between the flows of refugees and human rights protection, as gross violations of human rights bring about flows - at times on a massive scale - of refugees,189 raising difficulties for the mechanisms of protection. The protection of refugees and displaced persons is thus to be properly coordinated with the mechanisms of human rights protection (at global and regional levels).190 And the emergence of human collectivities in need of special attention and protection -internationally displaced persons, internal displaced persons, returnees, so-called "economic migrants," etc. - give a new and wider dimension to international refugee law.

2. The intertemporal dimension of international refugee law

For the purposes of the present study, besides the possible assimilation of victims of environmental disasters to protected persons under refugee law, there is another point deserving of attention, and likewise unexplored to date: that of the intertemporal dimension of international refugee law. This dimension is always present, at distinct levels; for example, environmental disasters, though appearing as "immediate"-term phenomena, may affect people also in the long-term. There may be victims of phenomena or accidents caused by man with long-term effects. Such long-term victims may well appear as displaced persons for the purpose of protection under international refugee law.

The temporal dimension is further manifest in the endeavours of prevention or forecasting of refugee flows. It is precisely the threat of violence that leads to movements of refugees; the time element is underlying the very notion of forced migrants, who leave home on perceiving a threat or probability of violence.191 In this connection, the expression "early warning," coined in the realm of environmental law, has lately been utilized also in the ambit of refugee law and human rights protection.

Thus, the UN Secretary-General himself has had occasion to stress the importance of providing early warning of developing situations concerning possible refugee outflows. The special rapporteur of the UN Commission on Human Rights on the question of massive exoduses recommended in 1981 the establishment of an early-warning system on the basis of impartial information-gathering so as to forewarn of potential exoduses and to consider preventive action before the start of a mass movement. In UN debates on the matter, the possibility was raised of elaborating guidelines, of a preventive nature, to avert new flows of refugees and to cope with problems raised by mass flows of refugees.192 In that same year, the UN General Assembly established a Group of Governmental Experts on International Cooperation to Avert New Flows of Refugees, which reported on the matter in 1986. The need has been stressed of rendering the UN system "more effective in anticipating major humanitarian problems, particularly those which could lead to mass movements of populations,"193 using the UN Centre for Human Rights as the focal point in developing UN mechanisms to that end.

Endeavours to prevent floods of refugees were in fact undertaken, on the basis of an agreement signed in 1979, by Vietnam and UNHCR.194 In another case, in a resolution adopted in 1985, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities alerted the UN Commission on Human Rights that the human rights situation in Pakistan was one with "great potential to cause a mass exodus, especially of members of the Ahmadi community."195

Early warning, to cope with the problems raised by forced migrants - especially when in large numbers and in conditions of distress - comprises the gathering of information and projections from that information, so as to enable "a prediction of future disaster."196 That information can further be used for "the framing of policies and programmes to cope with forced migration"; the employment of early warning can be directed largely to two main situations, namely, to "the prevention or containment of an outflow of people" or, when that is no longer possible (when migration has already begun), to the amelioration of the situation.197 In either case, early warning would be directed at intergovernmental organizations and relevant voluntary groups concerned so as to take the necessary (preventive) measures and to prepare assistance.198

In 1984 the UN Centre for Human Rights suggested that the following criteria be used as a basis for the assessment of the gathered information, so as to identify situations that could lead to massive movements of people: "(a) a large number of people are affected; (b) a serious likelihood exists that a mass movement of people might take place; and (c) the movement taking place might extend across international borders."199 Situations of the kind, affecting human collectivities, call for compliance with obligations similar to those propounded for treating victims, or potential victims, of environmental disasters (e.g., prevention, prompt information, minimization of distress, contingency plans, emergency assistance, and compensation).200

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