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XI. The question of the implementation (mise en oeuvre) of the right to a healthy environment

1. The issue of justiciability

It can hardly be doubted that the appropriate formulation of a right may facilitate its implementation. But given that certain concepts escape any scientific definition, it becomes necessary to relate them to a given context for the sake of normative precision and effective implementation (mise en oeuvre); thus, e.g., the term "environment" may be taken to cover from the immediate physical milieu surrounding the individual concerned to the whole of the biosphere, and it may thus be necessary to add qualifications to the term.201 In the implementation of any right one can hardly make abstraction of the context in which it is invoked and applies: relating it to the context becomes necessary for its vindication in the cas d'espèce.202

This applies not only to the right to a healthy environment, but also to any other "category" of rights. But such "new" rights as the right to a healthy environment and the right to development present admittedly a greater challenge when one comes to implementation: while many of the previously crystallized civil and political, and economic, social, and cultural rights had at a much earlier stage found expression also in domestic law and had been formally recognized in national constitutions and other legislation, the above-mentioned "new" rights, in their turn, were still "maturing" in their process of transformation into law, were "conceived directly in international forums" (such as the United Nations system), and had "not had the benefit of careful prior scrutiny at the national level."203 Many rights, whether classified as civil and political, or else as economic, social, and cultural rights, "can only be defined with specificity when located in a given context."204

While the element of formal justiciability is taken as an "indispensable attribute" of a right in positivist thinking,205 international human rights law has distinctly considered that "an international system for the 'supervision' of States' compliance with international human rights obligations is sufficient to satisfy the requirement of 'enforceability'."206 In short, international human rights law has "clearly adopted the notions of 'implementation' and 'supervision' as its touchstones, rather than those of justiciability or enforceability."207 International human rights law counts largely on means of implementation other than the purely judicial one;208 besides recourse to such judicial organs as the European and the Inter-American Courts of Human Rights, there occurs most often resort to various other means - non-judicial means - of implementation of guaranteed human rights (e.g., friendly settlement, conciliation, fact-finding).209

Formal justiciability or enforceability is by no means a definitive criterion to ascertain the existence of a right under international human rights law. The fact that many recognized human rights have not yet achieved a level of elaboration so as to render them justiciable does not mean that those rights simply do not exist: enforceability is not to be confounded with the existence itself of a right.210 Attention is to be focused on the nature of obligations; it is certain that, for example, obligations under the UN Covenant on Economic, Social, and Cultural Rights were elaborated in such a way (e.g., the basic provisions of Articles 2 and 11) that they "cannot easily be made justiciable (manageable by third-party judicial settlement). Nevertheless, the obligations exist and can in no way be neglected."211

One is to reckon, in sum, as far as the issue of justiciability is concerned, that there are rights that simply cannot be properly vindicated before a tribunal by their active subjects ("titulaires"). In the case specifically of the right to a healthy environment, however, if, as pertinently pointed out by Kiss, this latter is interpreted not as the virtually impossible - right to an ideal environment but rather as the right to the conservation - i.e., protection and improvement - of the environment, it can then be implemented like any other individual right. It is then taken as a "procedural" right, the right to a due process before a competent organ, and thus assimilated to any other right guaranteed to individuals and groups of individuals. This right entails, as corollaries, the right of the individual concerned to be informed of projects and decisions that could threaten the environment (the protection of which counts on preventive measures) and the right of the individual concerned to participate in the taking of decisions that may affect the environment (active sharing of responsibilities in the management of the interests of the whole collectivity).212 To such rights to information and to participation one can add the right to available and effective domestic remedies. And it should not in this connection be overlooked that some economic and social rights were made enforceable in domestic law once their component parts were "formulated in a sufficiently precise and detailed manner."213

Focusing on the subjects of the right to a healthy environment, we see first that it has an individual dimension, as it can be implemented, as just indicated, like other human rights. But the beneficiaries of the right to a healthy environment are not only individuals, but also groups, associations, human collectivities, and, indeed, the whole of mankind. Hence its collective dimension as well. The right to a healthy environment, like the right to development, discloses both individual and collective dimensions at a time. If the subject is an individual or a private group, the legal relationship is exhausted in the relation between the individual (or group of individuals) and the state; but if we have in mind mankind as a whole, the legal relationship is not exhausted in that relation. This is probably why the distinction between individual and collective dimensions is often resorted to.

If we focus on implementation, it is conceded that all rights, whether "individual" or "collective," are exercised in a societal context, all having a "social" dimension in that sense, since their vindication requires the intervention - in varying degrees - of public authority for them to be exercised. There is, however, yet another approach that can shed some light on the problem at issue: to focus on the object of protection. Taking as such an object a common good, a bien commun such as the human environment, not only are we thereby provided with objective criteria to approach the subject, but also we can better grasp the proper meaning of "collective" rights.

Such rights pertain at a time to each member as well as to all members of a given human collectivity, the object of protection being the same, a common good (bien commun) such as the human environment, so that the observance of such rights benefits at a time each member and all members of the human collectivity, and the violation of such rights affects or harms at a time each member and all members of the human collectivity at issue. This reflects the essence of "collective" rights, such as the right to a healthy environment insofar as the object of protection is concerned.

The multifaceted nature of the right to a healthy environment becomes thus clearer: the right to a healthy environment has both individual and collective dimensions- being at a time an "individual" and a "collective" right -insofar as its subjects or beneficiaries are concerned. Its "social" dimension becomes manifest insofar as its implementation is concerned (given the complexity of the legal relations involved). And it clearly appears in its "collective" dimension insofar as the object of protection is concerned (a bien commun, the human environment).

The matter has not been sufficiently studied to date, and considerable in-depth reflection and research are required to clarify the issues surrounding the implementation of the right to a healthy environment and the very conceptual universe in which it rests. Insofar as the subjects of the relationships involved are concerned, one has moved from the individuals and groups to the whole of mankind, and in this wide range of titulaires one has also spoken of generational rights (rights of future generations - see supra). Insofar as the methods of protection are concerned, it still has to be carefully explored to what extent the mechanisms of protection evolved under international human rights law (essentially, the petitioning, the reporting, and the fact-finding systems)214 can be utilized also in the realm of environmental protection.

It seems that the experience accumulated in this respect in the last decades in human rights protection can, if properly assessed, be of assistance to the development of methods of environmental protection. Some inspiration can indeed be derived from the experience of the application of mechanisms of international implementation of human rights, for the improvement of international implementation of instruments on environmental protection. It is, in this connection, reassuring to note that the conclusions of the recent Forum on International Law of the Environment, held in Siena, Italy, in April 1990, recognize inter alia that "certain procedures used for the protection of human rights could serve as models in the field of the protection of the environment."215 Likewise, expert writing on international environmental law has suggested that UN international environmental organs could be given "powers similar to those" of the UN Committee on Economic, Social, and Cultural Rights "to study and comment on reports submitted by States since the right to a good environment is similar to and partakes of all the difficulties and drawbacks of social and economic rights."216 Such acknowledgements are quite understanding and beneficial to environmental protection, given the fact that human rights protection antedates it in time, and experience with the implementation of the latter can be of use and value to the implementation of the former.

2. The issue of protection erga omnes: "Drittwirkung"

In the fields of both human rights protection and environmental protection there occur variations in the obligations: some norms are susceptible of direct applicability, others are rather programmatic in nature. Attention ought thus to be turned to the nature of the obligations. An important issue, in this connection, is that of the erga omnes protection of certain guaranteed rights, which raises the issue of third-party applicability of conventional provisions. This issue, called "Drittwirkung" in German legal literature, can be examined in the domains of both human rights protection and environmental protection.

In the former, Drittwirkung is still evolving in, e.g., the case-law under the European Convention on Human Rights217 (infra). Bearing in mind the considerable variety of rights guaranteed under human rights treaties, there are provisions in these latter that seem to indicate that at least some of the rights are susceptible of third-party applicability (Drittwirkung). Thus, Article 2(1)(d) of the UN Convention on the Elimination of All Forms of Racial Discrimination prohibits racial discrimination "by any persons, group or organization " By Article 2(1) of the UN Covenant on Civil and Political Rights States Parties undertake not only "to respect" but also "to ensure" to all individuals subject to their jurisdictions the rights guaranteed under the Covenant - what may be interpreted as at least the States Parties' duty of due diligence to prevent deprivation or violation of the rights of one individual by others. And it has been argued that Article 17 of the Covenant (right to privacy) would cover protection of the individual against interference by public authorities as well as private organizations or individuals.218 In addition, Article 29 of the Universal Declaration of Human Rights refers to "everyone's duties to the community."

The European Convention on Human Rights, in its turn, states in Article 17 that nothing in the Convention may be interpreted as implying "for any State, group or person," any right to engage in any activity or perform any act aimed at the destruction of the guaranteed rights. Articles 8-11 indicate that account is to be taken of the protection of other people's rights; and from Article 2, whereby "everyone's right to life is protected by law," it may be inferred the state's duty of due diligence of prevention and of making its violation a punishable offence.219 It can in fact be forcefully added that the supreme values underlying fundamental human rights are such that they deserve and require protection erga omnes, against any encroachment, by public or private bodies or by any individual.220

Even though the issue of Drittwirkung was not considered when the European Convention was drafted, the subject-matter of the Convention lends itself to Drittwirkung in the sense that some of the recognized rights deserve protection against public authorities as well as private individuals, and states have to secure everyone - in the relations between individuals- against violations of guaranteed rights by other individuals.221 Thus, e g, with regard to the right to privacy (Article 8 of the Convention, on respect for private life), there is need to protect this right also in the relations between individuals (persons, groups, institutions, besides states). Situations have in fact occurred in practice where the state may be involved in the relations between individuals (e.g., custody of a child, clandestine recording of a conversation by a private individual with the help of the police)222 Certain human rights have validity erga omnes, in that they are recognized in relation to the state but also and necessarily "in relation to other persons, groups or institutions which might prevent the exercise thereof "223

Thus, a human rights violation by individuals or private groups can be sanctioned indirectly, when the state fails, in "its duty to provide due protection," to take the necessary steps to prevent or punish the offence.224 Article 8 of the European Convention pertinently illustrates the "absolute effect" of that right to privacy, the need for its protection erga omnes against frequent interferences or violations not only by public authorities but also by private persons or the mass media.225

In the same line, it has been forcefully argued that the right to a healthy environment ought to be "opposable aux tiers, avoir un effet direct à leur égard," ought to be "opposable directement aux particuliers de façon à assurer la protection des intérêts des individus et des groupes en matière d'environnement"226 Drittwirkung amounts to the situation whereby everyone is beneficiary of that right and everyone has duties vis-à-vis the other citizens and vis-à-vis the whole community; "tout le monde est bénéficiaire de ce droit, mais en même temps tout le monde assume aussi des obligations de son fait: Etat, collectivités, individus."227

XII. The right to a healthy environment and the absence of restrictions in the expansion of human rights protection and environmental protection

1. No restrictions ensuing from the coexistence of international instruments on human rights protection

In the field of the international protection of human rights, restrictions are not to be inferred from the possible effects of multiple coexisting instruments of human rights protection upon each other: on the contrary, in the present context, international law has been made use of in order to improve and strengthen the degree of protection of recognized rights. In fact, the interpretation and application of certain provisions of one human rights instrument have at times been resorted to as orientation for the interpretation of corresponding provisions of other - usually newer - human rights instruments.228

Normative advances in one human rights treaty may indeed have a direct impact upon the application of other human rights treaties, to the effect of enlarging or strengthening the States Parties' obligations of protection and restricting the possible invocation or application of restrictions to the exercise of recognized rights. Multiple human rights instruments appear complementary to each other; and their complementarily reflects the specificity of the international protection of human rights, a domain of international law characterized as being essentially a droit de protection. Where states have undertaken obligations under multiple coexisting instruments of human rights protection, it may be taken to have been the intention to accord individuals a more extended and effective protection. In sum, there is here a clear trend towards the expansion and enhancement of the degree and extent of protection of rights recognized under coexisting human rights instruments.229

2. No restrictions ensuing from the coexistence of international instruments on environmental protection

Likewise, in the field of international environmental law, restrictions are not to be implied from the possible effects upon each other of multiple coexisting instruments on environmental protection. To this effect, in its well-known 1987 report, the World Commission on Environment and Development, in propounding the elaboration of a Universal Declaration and a Convention on Environmental Protection and Sustainable Development, stressed the need "to consolidate and extend relevant legal principles" on the matter in order "to guide State behaviour in the transition to sustainable development," and warned that multiple coexisting as well as new international conventions and agreements in the area were to strengthen and extend environmental protection.230 As in human rights protection (supra), there is no room for (implied) restrictions in the present domain of environmental protection either.

Having thus considered the point at issue from the perspective, on the one hand, of the effects of human rights instruments upon each other, and, on the other hand, of the effects of environmental protection instruments upon each other, we have found no room for the incidence of restrictions, as those instruments, in one and the other domain, were meant to reinforce each other and strengthen the degree of protection due. It now remains to examine the point at issue from the perspective of the effects of norms or instruments of human rights protection and of environmental protection inter se, or more precisely, of the effects of the recognition of the right to a healthy environment upon the corpus of human rights already recognized.

3. No restrictions ensuing from the expansion of systems of protection (as evidenced by the recognition of the right to a healthy environment) in their effects upon each other

A fairly recent trend of thought has visualized in the emergence of environmental policies of states the incidence of restrictions upon the exercise of certain recognized human rights. It has further justified these latter to the effect of protecting the environment. I have suggested that, while some of the more classical civil and political rights are not apparently affected, certain economic and social rights are susceptible of suffering restrictions. As examples, reference has been made to the rights of free circulation, of choice of residence, and to property, in face of protected areas or zones; the rights to work, in face of anti-pollution measures; the right to equality, in face of disparities in administrative measures as to the environment; the freedom of association, in face of measures against noise pollution; the right to family, in face of birth-control measures; the right to development and to leisure, in face of measures for conservation of nature.231

This approach, it is submitted, is inadequate and short-sighted, even though it cannot fail to admit that the right to a healthy environ ment comes ultimately to guarantee and reinforce such basic rights as the right to life and the right to health. 232

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