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close this bookEnvironmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)
close this folderInternational human rights law and environmental problems
close this folder8. The human rights system as a conceptual framework for environmental law
View the document(introductory text...)
View the documentEnvironmental issues
View the documentEnvironmental rights in the context of the natural order
View the documentDuty to future generations
View the documentThe concept of ''the common concern of mankind''
View the documentThe protection of indigenous peoples
View the documentEnvironmental rights and international refugee law
View the documentSubstantive norm-making and enforcement procedures
View the documentConclusion
View the documentNotes

Environmental issues

Environmental issues arise out of the actual or apprehended deterioration and degradation of the environment traceable to activities by human beings. In each such case, there is an activity that causes,

Ecology Law Quarterly, 495 (1984). or is expected to cause, environmental damage, a person or group of persons responsible as the authors of the activity, and a person or group of persons who suffer, or expect to suffer, from the damage. There is a web of legal rights and obligations emerging out of the activity and its consequences, varying in incidence with the character of the environmental issue. The entire corpus of environmental law has evolved around environmental issues, located in municipal law where the gamut of rights and obligations is confined within a state, extending to regional treaty arrangements where two or more states in a region are affected, and expanding to global status where generally large regions over the planet are involved. The nature and character of environmental issues play a decisive role in determining the scope and content of environmental law, and indeed, the substance and direction of environmental policy. Environmental policy may be shaped by the requirements of environmental problems as they operate interspatially to affect the present generation, and in an intertemporal dimension to affect future generations through consequences extending into the future.

Environmental policy determines, among other things, the order of priority in which environmental issues need to be considered. The order of priority will vary with the perspective applied to them, and different perspectives can be expected according to the nature of the interest involved. The scientist may take a view different from the government. And emphasis on development may have an impact in the choice of priorities. Besides, a national perspective may conceivably vary from the global. However, with the growing awareness of the need to pool knowledge, information, and experience, lawmakers and men of public affairs are today paying greater respect to scientific studies, and governments are finding it necessary to consult international trends when formulating national policies. As a result, a greater approximation seems possible in the preparation of environmental issue inventories. In the final analysis, it is the seriousness and immediacy of the impact of an environmental problem on the life of human beings, as individuals or as members of a collectivity, and on planetary life in relation to man generally, that must determine the degree of gravity and, therefore, of priority. The involvement of environmental issues in human life should be measured by their consequences, and one way to determine this would be to see how they are regarded in point of critical gravity. One analysis7 lists genetic loss, ecosystem disruption and destruction, deforestation, desertification, contamination of the environment (air, water, soil, and biota), and the degrading and depletion of fresh water as critical issues on which immediate action is necessary. Issues such as overpopulation by humans, deterioration and erosion of topsoil, the changing chemistry and quality of the atmosphere, the sources and issues of energy, and the disruption of biogeochemical cycles are also acquiring an urgency that brings them into the front rank for emergent attention.

Human rights as a conceptual philosophy of the environmental law system

It is evident from what has gone before that the protection and improvement of man's environment arise directly out of a vital need to protect human life to assure its quality and condition, to ensure the prerequisites indispensable to safeguarding human dignity and human worth and the development of the human personality, and to create an ethos promoting individual and collective welfare in all the dimensions of human existence. Centred on those goals, it needs to be examined whether the conceptual framework most appropriate to the structuring of the environmental law system lies in the philosophy of human rights.8

The right to environment defined

While environmental law has revolved around a broad understanding of human needs, it is not easy to define the right to environment with sufficient precision and clarity. Different views have been voiced by different jurists. One standard adopted is that of a decent environment.9 Another writer speaks of a "decent and healthy environment." Principle I of the Stockholm Declaration refers to "a life of dignity and well-being." Of all the universal or regional documents relating to human rights, the most specific provision for environmental protection is contained in the African Charter of Human and Peoples' Rights, which provides that all peoples should have the right to a generally satisfactory environment favourable to their development. The World Commission on Environment and Development has proposed that, as a fundamental legal principle, "all human beings have the fundamental right to an environment adequate to their health and well-being."10 Perhaps the most acceptable definition would be the right to a healthful environment, for that would be synonymous with an ecologically balanced environment, an environment that may be described as "healthful" in terms of both our natural heritage as well as our cultural heritage.11 The expression is sufficiently comprehensive to cover all those objectives that environmental rights are intended to serve. Moreover, in identifying it with an ecologically balanced environment, the value base takes into account not only moral and philosophic perceptions but also indications from scientific data. Nonetheless, the scope of the definition of the right to environment will remain uncertain. The precise area cannot be defined as it will vary with local social, economic, and cultural values.

The environmental right examined in terms of the human rights jurisprudence

The right to a healthful environment points to the satisfaction of a vital need. What a vital need is in philosophical terms has been considered by several writers. In an interesting discussion on human needs and human rights, Winslade12 discusses the concept, and describes vital needs as needs "whose satisfaction would be in the interest of, and would be wanted and desired by, nearly all intelligent and rational persons under ordinary circumstances.... Alternatively, one might say that vital needs are those needs which are at least necessary conditions for reaching and maintaining a decent standard of living." Passing on to the relation between human needs and human rights, he considers it necessary to add the further ingredient of fundamental moral principles in order that needs may mature into human rights. He points out:

... the rights are based not only on the existence of unfulfilled vital needs. but also upon an appeal to fundamental moral principles such as equality and human worth. That is, unless these moral principles have operative moral and political force, the growth of rights from needs will be frustrated. For principles like equality and human worth to have moral and political force, they must be taken seriously not merely as lofty ideals but as guides for social reform.

The need for a healthful environment is, as we have seen, vital to the protection of life and to the preservation and enhancement of its quality and condition. Desirable standards of health and welfare will be impossible to sustain in an atmosphere depleted of life-giving and life-sustaining elements. Interference with man's ecological relationship with nature could destabilize his human personality that is the evolutionized product of several millennia. The destruction of his cultural heritage could set him back in time, grievously depriving him of that intellectual, artistic, and social milieu deemed essential to the sustenance of civilized man. As a moral, intellectual, and physical being, developing amidst the dynamics of the process of evolution, man needs the constant environment of a healthful natural order. That need is now increasingly finding expression in the political society in which man lives. In several democratic cultures today the political process, acting through the principal organs of the state, is busy evolving and promoting conditions for improving human dignity and human worth. There can be little doubt that upon that approach the need for healthful environment must be viewed in the maturity of a human right.

There are other conceptual criteria that should be considered. They distinguish human rights from other rights in the general family of rights. Edel13 classifies them by their properties, status, and function. If the right to a healthful environment satisfies certain criteria, it is entitled in the view of modern jurists to be regarded as a human right and not a mere right.

Among the properties of a human right that set it apart from other rights is its greater generality, its importance (human rights are also referred to as fundamental rights),14 that it is essential and enduring, and that it is inalienable.

Human rights are general rights in that they pertain to all human beings as such, and while the understanding of them may vary from region to region and from culture to culture, the concept of human rights remains universal. The right to a healthful environment is a right that belongs to every individual or group of individuals. When a group claims that right, it is not the group that possesses the human right but the individuals cooperating together in the membership of that group. The right cannot be withheld from an individual by reference to his race, citizenship, religion, sex, place of birth, or any such limiting class qualification. The right to a healthful environment belongs to all across the globe. The right satisfies the human right test of generality.

The second test of a human right lies in its importance. Human rights are more basic or fundamental than other rights. They are basic and fundamental because in the scale of values, they enjoy a transcendental position over other rights. They are, in fact, the source of other rights, which are derived or flow from them. This test, applied to the right to a healthful environment, is easily satisfied when we remember that a healthful environment is a fundamental requirement for the protection and enhancement of the quality of life and, in certain circumstances, proceeds beyond the issue of human survival on the planet. The categories of environmental issues demonstrates clearly that a degradation of the natural environment poses a grave, and sometimes an immediate, threat to planetary life. The greenhouse effect and the depletion of the ozone layer are only two kinds of the environmental damage threatening catastrophic consequences to human existence. Reference has been made earlier also to the threatened destruction of man's cultural heritage. The greater significance of that cultural heritage must not be overlooked. It occupies a central role in giving to man a conception of his essential values, besides providing an indispensable perspective in planning for the future.

On the third characteristic of human rights, whether they are essential and enduring and unvarying in identity or change with the context of time and circumstance, it seems that the preferred position is that among the several lists of human rights there will be some hu man rights that hold a pre-eminent position in comparison with other human rights. The right to life, the right to equality, and the right to freedom of expression are some of the human rights that are of primary significance to the human personality and therefore hold a superior place in the human rights hierarchy. They continue to maintain their sacred niche in the catalogue of human rights, whatever the chronology of time or the geography of place.

They represent the immutability of human values and the essential spirit of human civilization. This central niche is not complete, but will continue to accommodate fresh members. As the quality and condition of human society in its evolutionary progress moves on to occupy new fields of experience, the rising challenges facing the human spirit and human survival will call for accretionary powers of expression and control, and values that were overlooked, or considered insignificant or peripheral, will demand their inclusion in the centre of human rights. So imperative are these that the contemporary observer will find it difficult to believe that they could ever have been overlooked. The right to a healthful environment is one such right. Its importance and great significance to human life merits it a place in the central core of human rights. Viewed as a human right in itself, it is entitled to that status.

The right to a healthful environment may be regarded also as a vital aspect of the right to life, for without a sound environment it would not be possible to sustain an acceptable quality of life or even life itself. The right to life lies in the central core of human rights. It may be observed that the values incorporated in these central core rights are not stated or finally expressed, but their dimensions will continue to expand as the levels of human liberty and freedom keep on ascending and a new consciousness of their potential is realized. It is not unusual that changes of perspective induced by an enlarged or more enlightened awareness should open up new vistas of social, economic, and cultural outlook, often producing fundamental changes in the orientation of human society.

The fourth characteristic of basic human rights is said to lie in their inalienability. The American Declaration of Independence includes life, liberty, and the pursuit of happiness as inalienable rights. They constitute the central core of human rights indispensable to the nature of the human personality. There will always be a minimum of human rights that cannot be alienated if the human personality is to retain its essential character. It can be unhesitatingly concluded that the right to a healthful environment is not a right that can be waived or surrendered, having regard to its fundamental relationship with the basic life process of a human being. It is not possible to conceive of life or an acceptable quality of life without a sound environment to sustain it.

There are two further Edelianheads to be considered, namely, status and function, which distinguish human rights from other rights. Concerning "status," human rights are those grounded in reality and not in mere convention. It is apparent from what has been said earlier that human rights, in virtue of their true character, must be an inherent feature of the fundamental values of the society to which the individual belongs. They do not exist by convention but because they inhere in individuals as the owners of a human personality. The right to a healthful environment is rooted in the reality of man's inherent condition and its indispensability to his personality as a human being; it cannot be regarded as the offspring of convention. The right to a healthful environment qualifies as a human right in that context.

And now the last head. A human right is identified from other rights by its status as a conceptual source of bodies of rights constituting the general corpus of the law. Its normative values flow through and control the relations between a political society and its members. The right to a healthful environment fulfils this role. From such a right proceeds an entire bundle of environmental rights, the right to clean water and pure air, the right to the protection of the soil against degradation and of marine resources against pollution, the right to the preservation of man's cultural heritage, and a host of other rights centred in the right to a healthful environment.

Viewed in the context of all these criteria, it appears that in jurisprudential terms the right to a healthful environment qualifies as a human right.

The environmental right considered for a place in the international law system

It remains to be determined whether the right to a healthful environment can be located in an international legal system. If so, then it can be regarded as a source of international law.

The philosophy of human rights owes its origin to "the marriage of positivist and natural law doctrine.''15 That philosophy had engaged some of the most brilliant minds on both sides of the Atlantic, but principally in a national context. In 1776, however, the American Declaration of Independence spoke of the inalienable rights of man, and in 1789 the French Declaration of the Rights of Man and the Citizen defined the concept of universal human rights as "the natural and imprescriptible rights of man." With the adoption of the United Nations Charter in 1945, the philosophy of human rights passed into the jurisprudence of international law. As Louis Sohn summarizes the position that fallowed,16 individuals gained rights under international law and, to some degree, the means for vindicating those rights in the international plane in four successive law-building stages: the assertion of international concern about human rights in the United Nations Charter; the listing of those rights in the Universal Declaration of Human Rights; the elaboration of those rights in the International Covenant on Civil and Political Rights and in the International Covenant on Economic, Social, and Cultural Rights; and the adoption of an increasing number of additional declarations and conventions concerning issues of special importance, such as discrimination against women, racial discrimination, and religious intolerance.

The binding nature of those documents is no longer open to question. The United Nations Charter is a constitutional document of the highest status in the international system. As for the Universal Declaration of Human Rights, it is now considered to be an authoritative interpretation of the United Nations Charter, and along with the United Nations Charter is regarded as part of the constitutional structure of the world community.17 The two International Covenants are treaties binding on the States-Parties thereto. Along with the Universal Declaration, they are also part of the international customary law, and as such are binding on all states.

The International Covenant on Civil and Political Rights represents the culmination of a revolution during which men struggled for primary liberties and freedoms, such as the right to liberty and security of person and the right to freedom of thought, opinion, conscience, and religion. These rights are often referred to as human rights of the "first generation."

The revolution for civil and political rights was followed by another revolution. The working class rebelled against conditions that it considered exploitative. And states emerging from colonial domination into a new-found freedom were insistent on conditions that guaranteed the fruits of that freedom. The accent was on state action to promote economic and social well-being and to create a welfare state. The International Covenant on Economic, Social, and Cultural Rights was adopted to satisfy those aspirations, and the human rights declared by it are referred to as human rights of the "second generation." When human rights are identified as rights of the "first generation" or of the "second generation," it is not implied that "first-generation" rights have been superseded by the "second-generation" rights. The expression "generation" is used to indicate a further distinct development in the domain of human rights, that while the earlier generation of rights continues to exist, a new generation has also now come into existence. Both generations not only coexist, they also interact with each other.

A new generation of international human rights, the "third generation," has evolved for filling a significantly important gap in the international law system of human rights. They are collective rights "exercised jointly by individuals grouped into larger communities, including peoples and cations."18 "Third-generation" human rights are occupied with planetary or global concerns such as peace, development, communication, common heritage, and humanitarian assistance. Karel Vasak, who conceived of the notion of different generations of human rights, observed, in speaking of the new human rights of the "third generation" in his Inaugural Lecture to the Tenth Study Session of the International Institute of Human Rights in July 1979, that they

are new in the aspirations they express, are new from the point of view of human rights in that they seek to infuse the human dimension into areas where it has all too often been missing, having been left to the State, or States.... [Theyl are new in that they may both be invoked against the State and demanded of it; but above all (and herein lies their essential characteristic), they can be realized only through the concerted efforts of all the actors on the social scene: the individual, the State, public and private bodies and the international community.19

The "third-generation" human rights have been variously described as "rights of solidarity" (by Vasak), collective rights, or rights of every human being and of all human beings taken collectively, synthetic rights, consolidated rights, communal rights, rights of the peoples, or populist or popular rights, joint rights of individuals and other groups, or rights exercised by individuals separately and jointly, and new rights or new dimensions of existing rights."20

In an interesting and illuminating comparison, Vasak points out that the three generations of human rights were intended to realize the corresponding three guiding principles of the French Revolution: liberté, egalité,,fraternité.21

There has been considerable debate on the point whether a "third generation" of human rights should be, or can be, conceived of. In regard to the right of development there was a divergence of opinion. Keba Mbaye, then Chief Justice of Senegal and later Vice-President of the International Court of Justice, sought to discover the right to development in the existing instruments of international law. Vasak, on the other hand, is emphatic that a new generation of human rights must be admitted, reflecting the need to recognize rights of solidarity. The different views demonstrate what is becoming increasingly apparent: that a clear demarcation is not always possible between human rights of the different generations. The comprehensive terms in which a human right may be defined often enable a fair degree of overlapping across two or three generations of rights.

Where does the right to a healthful environment find a place? It will be evident that having regard to the wide sweep connoted by the right to a healthful environment, it can find a place as a "first generation" right, as a "second-generation" right, and also as a "third-generation" right.

The right to a healthful environment is rooted in the right to an acceptable quality of life, which, in certain circumstances, extends to the right to life itself. The Preamble to the United Nations Charter specifically refers to fundamental human rights, the dignity and worth of the human person as well as to better standards of life. In Article 1(3) of the Charter, there is a reference to promoting and encouraging respect for human rights and fundamental freedoms. If the right to a healthful environment is treated as an aspect of the right to life, it can be founded in Article 3 of the Universal Declaration of Human Rights and in Article 6(1) of the International Covenant on Civil and Political Rights. The right to life in those provisions will need to be construed liberally, because in its narrow, strict sense, in the context in which the right appears, it would seem confined to the protection of the individual against physical death. In the Preamble to the Stockholm Declaration of 1972,22 the enjoyment of a healthful environment has been linked with the right to life. The growing emphasis on environmental protection and the need to find a legal basis for it in the right to life illustrate how a new human right may emerge as the manifestation of a primary human right.23 While the right to a healthful environment is expressly mentioned in the International Covenant on Civil and Political Rights, specific mention is made in Article 12(2)(b) of the International Covenant on Economic, Social, and Cultural Rights of the obligation on the state to provide for "the improvement of all aspects of environmental... hygiene." If the right to a healthful environment can be construed as implied in the provisions of the Universal Declaration and its two Covenants and the several international treaties and conventions that flow from them, it may be said that the right to a healthful environment can be exercised not only against other states, that is to say, for transnational environmental injury, but also against one's own state, for local environmental damage.24 And if the right to a healthful environment can be traced to both the International Covenants, of Civil and Political Rights and of Economic, Social, and Cultural Rights, it can be exercised not only as a right against the state to ensure against environmentally harmful acts but also as a right to call upon the state to provide the conditions for a healthful environment. It is both a negative right and a positive right.

There is, however, another aspect to environmental rights. They are generally rights that belong to a group of individuals. In certain cases, they may have a regional and even a global dimension. A nuclear fallout or acid rain may affect an entire region. The depletion of the ozone layer and the greenhouse effect could have consequences affecting the entire planet.

Clearly, the regional or global dimension implied in the consequences would bring the right to a healthful environment into the list of "third-generation" human rights.

The right to a healthful environment includes a large number of different facets and therefore traverses and overlaps the first, second, and third-generation groups of human rights. Because of the nature of environmental rights, the several facets are members of a single environmental system. It is a system that is indivisible; it is not capable of dissection and separation into individual, independently operating parts of the whole. The intimate interaction and interdependence between its different parts requires us to view the environmental system from a holistic approach as a single, indivisible, and closely integrated operating system.

The right to a healthful environment constitutes a jurisprudential reality. It has matured from an abstract concept to operating law. Because of its character, it is found embodied in other existing systems of international law; for example, in the law of the sea, international economic law, and international labour law. Indisputably it has found a place in the existing international law.

The need is to put it together, identified as a definitive area of international law, self-constituted by its particular nature and its distinctive character, its conceptual underpinnings and its several facets, its operation as a system of law in constant interaction with other systems of law identified by their own conceptual character. What is needed is an integrated system of environmental law, centred on environmental concepts and values, that will address itself with particularity, and explore all possible approaches, to the task of finding solutions to various environmental issues. Bearing in mind the several areas of overlap between environmental law and other systems of law, the task will not be easy.25 It will be less so when the concept of environment is treated as extending to man's cultural environment.

There is undoubtedly great merit in providing, as Richard Falk suggests,26 for "a new centralized structure that can manage the affairs of a planet on a unified basis" in order to produce an "ecological model of equilibrium." But Gormley comments:

The numerous elements contained within the motion of protecting individuals and the preservation of the environment become involved with almost every phase of man's activity. Likewise, the majority of legal problems encompass environmental (and ecological) aspects; therefore, any international or regional organization must, necessarily, select specific areas for intensive effort.27

The problem has its own difficulties, and in the first instance it may be, perhaps, more appropriate to proceed in a phased manner in the context of an overall plan.

Having reached this stage in our journey, it is possible now to conclude that the international law of human rights can provide an appropriate value structure for environmental rights. It will be found that certain material incidents peculiar to both the human rights system and environmental law follow a common pattern. Human rights as well as environmental law have to deal with an area where the doctrine of national sovereignty has to give way to external concern in relation to a national activity. The veil of sovereignty cannot be employed to shut out the operation of the international law of human rights nor the application of environmental law principles. Moreover the international law of human rights, unlike traditional international law, which is designed "to serve common or reciprocal national interests," proceeds from a different motivation - "it is essentially ideological, idealistic, humanitarian; its true and deep purpose is to improve the lot of individual men and women everywhere, particularly where national institutions and non-legal international forces are not adequate...."28 This makes the international law of human rights especially relevant to the cause of environmental law, which in several areas tends to beneficially affect not only national, but also transnational and even global life, that is, the life of people everywhere. It is also pertinent that the international law of human rights as well as environmental law depend for their implementation on national, regional, and international institutions, operating for a common purpose, in mutual interdependence and with jurisprudential sympathy. It will be noted further that the universality of human rights law, despite the plurality of national cultures and economies, makes it fit as a medium of values for the operation of an environmental law system in which multiple perspectives and flexibility of procedures may be a significant feature. In a recent meeting at Malta in December 1990, the UNEP Group of Legal Experts to Examine the Implications of the "Common Concern of Mankind" Concept on Global Environmental Issues saw in the human framework the proper place for environmental protection. It was considered that the framework of human rights, with its emphasis on the social dimension and participation, was more appropriate than the framework of international ecological security. Besides, the preventive dimension was present in both environmental protection and human rights protection. The evolutions of environmental protection and human rights protection, it was observed, disclosed many affinities, and both were undergoing a process of globalization. A bridge between the two lay in the fundamental rights to life and health in their extended dimension, comprising negative as well as positive measures. The Group noted further that the protection of valuable groups, such as indigenous populations, "lay at the confluence of environmental protection and human rights protection, suggesting the need for bringing together human and environmental considerations.29

These several aspects point to the admirable suitability of human rights values for providing a conceptual framework for environmental law.

Philip Alston30 cautions the international community against rushing in to conjure up new human rights without compliance with the usual procedure adopted in law-making. In an admirable article, he analyses the manner in which, according to him, pressures operate to proclaim more new rights. He concedes, however, that laudable success in a number of areas has been achieved by the enunciation of new human rights, and acknowledges that the right to a healthful environment has already been recognized by the African Charter on Human and Peoples Rights of 1981. Stephen Marks31 points out that all the features necessary for identifying the right to a healthful environment as a new generation right are present: the elaboration of a specialized body of law, an easily identifiable legislative process, the incorporation of the right as a human right within municipal legal systems, and the need for concerted efforts of all social actors.

The right to a healthful environment is an emerging human right, and having regard to the considerable legislation that has already been enacted in municipal law systems and the manner in which the right has been recognized or aspectually applied in international treaties and in the practice of states, it is perhaps difficult to deny now that the right to a healthful environment has a significant status in international law. On the considerations adverted to earlier, the right may be traced to the right to life or treated as a new right altogether.