|Environmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)|
|International human rights law and environmental problems|
|8. The human rights system as a conceptual framework for environmental law|
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.
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.
In the consideration of the human rights philosophy as a conceptual structure for environmental law, it is desirable to survey the position of man in relation to the natural order. The quality and degree of the human right is conditioned by man's relationship to his surrounding ecology. The ancient religions tended to see all organic existence in a single framework united in harmonious interaction. More than 3,000 years ago, the Upanishads in India expressed the Vedantic viewpoint that the Supreme Reality was the undivided whole, the Brahman, which incorporated all manifestations of matter and energy together in a primordial transcendent, all-pervasive, and all-binding harmony.32 In American Indian culture, before the European settlers came to the American continent, the concept of an ultimate wholeness of all existence was implied when the individual sought relatedness to all manifestations of the Great Spirit: rocks, trees, animals, or people. The Chinese philosophers believed that man must invariably be seen as inseparable from nature and in oneness with the universe.33 In the opinion of this writer, perhaps the most accurate summation of the ecological model is embodied in the statement that "the universe must be seen as a systematic hierarchy of organized complexity- a myriad number of wholes within the wholes, all of which are interconnected and interacting. Within this perspective, an individual system cannot be properly understood apart from its relationship with the environment of which it is an integral part."34 The relationship between man and the several non-human components of the planetary environment is one of constant interaction, although not all the dimensions of that interaction may be visible or immediately and directly apparent. This truth is supported by widely accepted scientific conclusions, including those derived from subatomic physics.35 Legal jurisprudence today must take into account the influences that affect social structures, including those based on data emerging from operating scientific verities.
When in formulating a human right to a healthful environment, we conceive of values pertaining to individual man, we should view him as a unit in the ecological system. When we focus on his position as the bearer of the human right to a healthful environment, we should proceed on the basis that his environmental rights are qualified by the rights and interests of other affected sectors of the ecology. This creed rests on the fundamental principle that man does not enjoy a superior status over the rest of nature entitling him to exploit, for his own ends, the ecological biosystem to its irretrievable detriment and destruction, but that he is, indeed, merely a component equal with the other components of the ecological biosystem. Man, it is true, holds a higher position in the tree of evolution, but that only invests him with greater responsibility to the non-human components of the ecological family.36 As their moral agent, he has the duty to articulate and defend the rights of other occupants of the planet.37 In adopting this approach, one does not seek to view the environment in a homocentric dimension. Man is seen as a part of the environment, which consists of several interdependent patterns of existence that, operating within their own value systems and tonal emphasis, constitute the totality of the environmental system. These several patterns of existence constitute, in their interdependence, an organic whole represented by Nature, which, thus, may be seen as a vast empire of interacting and, therefore, of interwoven destinies.
In the enjoyment of the human right to a healthful environment, we must remember that the human right is generally expressed as an assertion of a claim by the individual against state authority. There can be no assertion of a human right against the non-human components of the ecological system. His right is an expression of a politico-legal reality and can only be asserted against a politico-legal entity. The relevance of non-human components of the ecological system is taken into account for determining the inherent worth and quality of the human right to a healthful environment. One manner of taking it into account is expressed in the obligation of man to exercise self-restraint when dealing with them, remembering at all times that he is their protector and defender by virtue of his superior evolution' and has a duty to maintain the integrity of the planet.
A question that has engaged considerable debate is the basis of recognizing an obligation in man towards the non-human elements of the planet. The principle of orthodox jurisprudence that an obligation arises only upon a correlative right cannot serve here inasmuch as non-human elements cannot be regarded as right-bearing. Therefore, a perspective proceeding from an entirely different approach needs to be adopted. Professor Christopher D. Stone has made an impressive contribution to the search for a solution. While stressing the need for a non-homocentric foundation for morals, "which would be more in line with our growing understanding of the grandness of the interrelationships of the natural world," he suggests that even if non-human, whether animate or inanimate, objects cannot be regarded as "possessors" of rights, they must be treated as "morally considerable." Moral considerableness, he says, creates duties in man to non-human animate and inanimate objects. The mere circumstance that nonhuman things possess an intrinsic goodness, that is, good in and of themselves, should be sufficient to attract duties towards them.38 He is critical of the range given to moral monism when several dimensions of standing are involved and suggests that we "conceive moral activities as partitioned into several distinct frameworks, each governed by distinct principles and logical textures.... Under moral pluralism frameworks vary in regard to the fabric of their basic concepts."39 This proposition is supported by Stephen Toulmin,40 who regards the cosmocentric or egocentric standpoint as nonhomocentric,41 and considers the common law jurisprudence appropriate for analysing situations arising in consequence of the new approach.42
It appears that a true understanding of environmental philosophy can be achieved only if legal principle is defined in the context of moral pluralism. It may indicate an extension of jurisprudence beyond the orthodox concept of a right-duty relationship, but it should not occasion surprise for the philosophy of law [that] has been generally understood in the context of a moral order. In different constitutional systems, constitutional principles and conventions test the validity of individual and state action on the anvil of social morality, for social morality constitutes the basis of the pattern of relationships within a society. In an ecological society the needs, interests, and "moral considerableness" of all its affected components must be taken into account. There is merit in the view that the human right to a healthful environment should not be comprehended from a homocentric standpoint, but in the totality of an egocentric value system. Positioning environmentalism in a human focus to the exclusion of non-human elements restricts it from the wider sweep to which it properly belongs.
Inasmuch as this approach proceeds upon a holistic perception of man positioned in the natural order, it provides a value structure most harmonious and beneficial to his development, and therefore, of fundamental significance to an understanding of the right to a healthful environment.
The human right to a healthful environment should be viewed in the context of a duty to future generations.43 The duty to preserve and protect the environment is a duty that is owed not merely to all other human beings, non-human beings, and inanimate objects in present time but extends also to future generations. The duty is expressed in the theory of "intergenerational equity," which articulates that "all members of each generation of human beings, as a species, inherit a natural and cultural patrimony from past generations, both as beneficiaries and as custodians under the duty to pass on this heritage to future generations," and that this right to benefit from and develop this natural and cultural heritage is inseparably coupled with the obligation to use this heritage in such a manner that it can be passed on to future generations in no worse condition than it was received from past generations.44 This theory of intergenerational equity finds support from religious and ethical norms and from numerous international instruments commencing, in modern times, from the Charter of the United Nations, the Universal Declaration of Human Rights and its two International Covenants, to a host of conventions and declarations that are concerned with the dignity, worth, and progress of mankind. When we speak of mankind, we speak of the human race as it exists today and also as it will in the future. And, therefore, an intergenerational dimension must be necessarily inferred in these international instruments extending to all future generations as an obligation erga omnes that derives some support from customary international law45 and is regarded as an emerging norm of customary international law. Another view is that the universal and unequivocal recognition of the duty to protect the interests of future generations, as well as of the principles necessary to implement that duty, should be achieved on the basis of treaty rather than be left to the development of customary law.46
As in the case of non-human beings and inanimate objects, a question arises whether this duty to future generations is correlative to a right inhering in future generations. If rights cannot be attributed to an unborn child, can they be attributed to unborn generations? Unless life on this planet becomes extinct altogether, in which case no occasion for enjoying the benefit of planetary resources or cultural heritage will arise, future generations may be regarded as of certain and definite existence, although lying in the future. We can conceive of a time continuum in which human generations are positioned at successive points of time. They will have definite and certain positions, depending on the number of years when one generation can be said to follow another. A continuous relationship links the generations, and they succeed each other with definite certainty and constant regularity. The existing concept of a right-duty relationship will, in this context, have to be developed further to accommodate the case of rights of future generations. These rights, as Professor E. Brown Weiss47 observes, are not rights possessed by individuals but are generational rights, conceived of in the temporal context of generations. They will be governed by considerations different from those applicable to the case of an unborn child, the incidents in each case being different from the other. Professor Brown Weiss points out that "while rights are always connected to obligations, the reverse is not always true,"48 and she refers to Hans Kelsen49 and John Austin50 in support.
Another dimension of man's relationship to the natural order is implied in the concept "the common concern of mankind." This concept was the subject of reference in United Nations General Assembly Resolution No. 43-53 of December 1988, and while covering climate change directly, it focuses on issues that are generally basic to mankind. The concept possesses a social dimension as well as a temporal dimension and is considered relevant to other sectors of international environmental law, including the conservation of biological diversity. The UNEP Group of Legal Experts, which was constituted to examine the implications of that concept, at its meeting in December 1990 in Malta, expressed the view that the concept of "common concern of mankind" is a more suitable and neutral concept in dealing with planetary resources than the earlier concept of "common heritage of mankind," in that proprietary considerations were excluded. The element of reciprocity, moreover, was avoided by choosing a concept based in considerations of ordre public. The ingredients constituting the concept of "common concern of mankind" lay in "involvement of all countries, all societies, and all classes of people within countries and societies, long-term temporal dimension, encompassing present as well as future generations, and some sort of sharing of burdens of environmental protection."
As will be apparent from this, the concept has been considered to possess several advantages, in that the word "mankind" implies a link with the human rights framework and with the long-term temporal dimension, including the inclusion of future generations; the word "concern" emphasizes the preventive character of environmental protection as well as the consequential effects or responses called for; the word "common" implies in international law the same sense as "public order" in municipal law, all of them making the notion of "common concern" akin to the related concepts of "obligations erga omnes," "jus cogens," "common heritage," and "global commons."51
This emerging concept provides greater flexibility than earlier notions in describing comprehensively the true nature and measure of man's obligations to elements of a global concern and avoid many of the pitfalls implied in those earlier notions.
The right to development
The emphasis on the right to development has, at every stage, constituted a challenge to the philosophy of environmental rights. It has been, in fact, the reason for a division between the developed countries and the developing countries concerning the operation of environmental rights. Developing countries have declined to adopt fully the perspective preferred by developed countries that environmental claims are superior to the right to development. While developed countries, already at the peak of industrialization, see dangers to the ecology from the current use of certain industrial processes and the combustion of fossil fuels, developing countries find it difficult to accept entirely the abandoning of such processes and use. Developing countries urge that they are in the early stages of development, and their economies do not permit alternative systems of energy. The position taken by them is that the developed countries should transfer appropriate technology to them to relieve them of the need to rely on present industrial processes and fossil-fuel energy. Developing countries contend that there is a moral duty owed by industrialized nations to the developing world.52 They rely also on the Declaration on the Establishment of a New International Economic Order, which implies that colonial powers have an obligation to assist the development of their former colonies.53 While this rationale is not readily accepted by developed countries, it seems to be conceded that underdevelopment is the by-product of the development of the Western countries, in that the growth of the colonial territories "was blocked by the destruction of the natural balance in place before colonialism, coupled with structural disadvantages built into the present international economic system."54 Whatever view be taken, the fact of colonialism certainly is a relevant factor, and justice and equity, well accepted as concepts incorporated into international law jurisprudence55 and fundamental international instruments,56 support that claim.
The controversy has compelled an examination of the question of whether the claim to a healthful environment and the right to development are mutually hostile and implacable enemies. The hostility was perceived as long ago as the United Nations Conference on the Human Environment at Stockholm in 1972, but by the adoption of the concept of "sustainable development," which found favour with the World Commission on the Environment and Development in the
Brundtland Report, "Our Common Future" (1987). Sustainable development is a concept that implies development that meets the needs of the present generation without compromising the ability of future generations to meet theirs.
In this context the insistence by the developing nations on the transfer of technology to them by the developed countries acquires pointed importance. Developing countries do not possess as yet the level of technological expertise that could equip them with industrial strategies from which offending industrial processes are excluded. Moreover, in the presence of high poverty levels they are unable to substitute environmentally protecting energy-production methods in place of fossil fuels. The creation of an international environmental fund has been suggested as a solution for enabling the transfer of technology from the developed countries to the developing nations. The consideration of such solutions continues to engage the international community, and the developed nations find it difficult to avoid facing the issue in view of the urgency of the threat of grave environmental danger disclosed by recent scientific data. The developed nations have now expressed a readiness to assist developing countries. The Declaration of the Hague provides for such assistance.57 So does the Communique from the Paris Summit, which encourages economic incentives "to help developing countries deal with past damage and to encourage them to take environmentally desirable action."58
The Vienna Convention and its Montreal Protocol bear witness to the international anxiety following discovery of the damage to the ozone layer. Beside the hole in the ozone layer over Antarctica, another hole in the ozone layer has been discovered over Europe, the United States, and Canada. The Montreal Protocol, while insisting on the termination of industrial processes, such as the use of chlorofluorocarbons in air-conditioning, refrigerants, and certain other industrial products, has limited the time for, and the quantum of, use of offending industrial processes. Considerations relating to the developing nations have been given allowance by prescribing time-lags for compliance with the minimum standards. The United States has also agreed now to support a special international fund to provide financial and technological assistance to developing nations. This fund will enable these countries to shift to chemicals that are safer for the atmosphere. The fund is planned to total from US$150 to US$250 million.59 Recent technological developments have made alternative chemicals available. A new market for hydrofluorocarbons (HFC 134a) can be developed replacing many uses for chloro-fluorocarbons. Other ozone-friendly chemicals include terpenes, which are natural solvents. Industry continues to explore replacements for CFCs. Relevant products include hairsprays, windshield-wash fluids, and paints, but the most difficult to replace appear to be antifreeze and refrigeration compounds.
One aspect of the rival claims between environmental rights and the right to development is that while both rights can be described as emerging human rights, with both tracing their roots in the Universal Declaration of Human Rights and its two International Covenants, and the several human rights instruments following them, a relative positioning of the two rights in the hierarchy of human rights appears unavoidable. It is now settled that while human rights constitute a superior class over ordinary rights, there will be, within the categories of human rights, an observable hierarchy structured according to the relative importance of particular human rights. As between the right to a healthful environment and the right to development, one mode of preference is suggested by the existence or non-existence of alternatives. In the case of the ozone layer, it is impossible to conceive of a feasible substitute. The depletion of the ozone layer removes the protection from the sun's ultraviolet radiation that the ozone layer affords, resulting in diseases such as skin cancer, eye cataract, and other health problems of mankind. On the contrary, as has been shown, it is possible to find alternatives to the use of chlorofluorocarbons so that chlorine atoms are not released and the ozone layer is not affected thereby. There will be other areas that call for the balancing of the dimension of environmental protection against the claims of the right to development. A balancing operation, taking into account relative needs, access to alternative procedures, the cost-benefit ratio, and related factors, will determine the fine point of balance between the two rival claims. Much will turn on local conditions such as social values, economic standards, and the like.
The apparent rivalry between environmental rights and the right to development has been occasioned by the circumstance that ecology and economics have been regarded from the outset as two different and distinct disciplines. The eminent development economist Amartya Sen, in his book on "ethics and economics," is critical of economists who have neglected the influence of ethical considerations in the characterization of actual human behaviour. According to him, economists have adopted a very narrow view of ethics as a result of "their preference for treating economics as a task akin to engineering."60 The Brundtland Report, in suggesting the concept of "sustainable development," has attempted to bring about a marriage of economics and ecology. The concept of sustainable development introduced some related concepts, thus incorporating the demands of intra-generational equity and intergenerational equity into a development framework - concepts such as the impact of regional and global ramifications, including spillovers; trade and cooperation; ensuring the maintenance of ecological systems and the protection of biodiversity; cautious and conservative attitudes, if there is significant risk, uncertainty, or irreversibility involved in the development project; and ensuring that the development proposed increases material and non-material well-being.61 The concept of "sustainable development," together with these related concepts, constitute the meeting point where environment and development stand reconciled, with both constituting balanced components within the environmental mosaic.
The protection of the environment and the reduction of poverty are treated as related aspects. The transfer of technology from the developed to the developing nations is a need whose imperative nature cannot be denied. The need becomes more comprehensive when it is realized that phenomena such as the depletion of the ozone layer and the greenhouse effect are problems concerning the entire planet, and therefore there is a collective global responsibility for taking and participating in all measures necessary to keep the planet in good health. It is now broadly accepted that the countries on the two continents of North America and Europe are responsible for almost three-quarters of the carbon-dioxide emissions that contribute to global warming, while peopled by a mere eight per cent of the world's population. The developing world can be held responsible for only seven per cent of the industrialized emission of carbon dioxide, although holding about eighty per cent of the world's population. Similarly, the environmental damage caused by CFCs must be attributed primarily to Western industrialized countries.62
The adverse impact of environmental degradation poses consequences for all sections of human society within its circumference. But while the more developed and economically affluent are capable of creating conditions for meeting or withstanding those consequences, or at least their full effect, there are vulnerable minorities whose very survival is threatened. In their extinction mankind loses a valuable cultural content. Indigenous communities in developing countries are most susceptible to that risk because of their intricate and fragile dependence on their natural habitat. Their survival depends upon it inasmuch as it provides, simultaneously, their shelter, their sustenance, and their fundamental culture. The nature of their dependence on their habitat is so total that any interference with it would constitute an assault on their existence. The Sub-Committee on the Prevention of Discrimination and Protection of Minorities has described their relationship with the land as comprising their "whole range of emotional, cultural, spiritual and religious considerations."63 A thoughtless and aggressive policy that destroys their habitat, be it in pursuance of a developmental programme or in consequence of military operations, produces a traumatic end to the indigenous community. In the vast mosaic of environmental protection, indigenous peoples are entitled to particular protection by reason of their sensitive relationship to their habitat. The World Commission on Environment and Development has referred to the danger of indigenous peoples being threatened with virtual extinction unless their traditional rights are recognized. It recommends that they should be given a decisive voice in the shaping of policies and programmes for the development of their areas.64
Economic considerations responsible for deforestation and use of land for agricultural and industrial purposes can do violent injury to the survival of an indigenous people and the preservation of their culture. The right to a healthful environment is as much a right to the minority community as it is of the majority, and in a conflict between the two claims the operating principle would incline in favour of preserving that which will be irretrievably lost. The right to development in action possesses the capacity of doing irremedial injury to an indigenous culture. The arrogance of developmental economics, which seeks to pursue with missionary zeal the introduction of modern values into the lives of an indigenous people, can destroy that which it intends to promote.
Where an indigenous community inhabits an island, such island culture depends for its sustenance upon the marine environment. The sea provides food and brings tourism and commerce. A disruption of that ethos by whatever means could easily deprive the people of their only source of subsistence, leading ultimately to their extinction. Global warming produces consequences of immeasurable danger to an island existence, with fatal consequences for the indigenous community and its indigenous culture.
An indigenous people is entitled to the preservation of its culture. The Universal Declaration of Human Rights, by Article 22, directs the protection of individual social, economic, and cultural rights. The various facets of the right to participate freely in cultural life presupposes the maintenance by an indigenous community of its identity and its protection against assimilation by the state. It also guarantees the right to cultural participation or minimal self-determination by the minority community. Ethnocide is as significant a form of destruction as any other. Involved in the protection of cultural values is the right to life and the right to security of person construed in terms of the quality and condition of life. Protected by the doctrine of jus cogens, they are non-derogable. While some municipal constitutions have specifically provided for the protection of such minorities,65 the international law regime needs to be strengthened and reinforced in its protection of indigenous peoples.
The conflict between environmental rights and the right to development, which has been treated previously, raises the same issues in the case of indigenous peoples. The notion of sustainable development applies to their context also. Informed by social justice, it is a promise to protect their right to life and their way of life against the threat of environmental degradation.
At various times in history individuals and groups have been compelled to abandon the home state because of the fear of persecution occasioned by policies based on religion, race, nationality, social, or political programmes and the like. The mass emigration of Russians and Armenians provoked by the installation of a Communist regime in Russia and similarly the emigration of Jews and other communities when Germany and its neighbouring territories came under East rule are historic examples of refugee movements. Natural disasters, destitute economies, and general political turmoil have also prompted large groups of people to seek refuge in more stable societies. Migrations of this character have generally taken place from less-developed countries. Environmental disasters may now be added to the list.
The international instruments incorporating the refugee law today are the Convention Relating to the Status of Refugees66 and the related Protocol67 Besides there are international institutions, the primary refugee relief organization of the United Nations being the United Nations High Commissioner for Refugees (UNHCR), aided by Unesco, UNICEF, and UNDP. In the drafting and adoption of the Convention an attempt to embody a comprehensive humanitarian protection was defeated. The generality of human rights values was compelled to give way to a much narrower focus, that of persecution for reasons of race, religion, nationality, or membership of a particular social group or political opinion. Persons who feared persecution by the denial of basic civil and political rights alone fell within the Convention.68 The grant of refugee status was broadly intended for the benefit of European refugees from Eastern Europe. Non-European states together with Belgium and the United Kingdom argued against a regional bias being given to the Convention. But the situation remained unaltered, except that subsequently by the Protocol the temporal restriction enacted in the definition of "refugee" was removed. The limitation implied by the grounds on which refuge could be sought continued as before. A narrow door was opened. The broad concept of humanitarianism was abandoned. This resulted in a two-tiered scheme for refugees, European refugees alone being granted legal protection in the context of residence abroad. UNHCR's competence enabled relief to be given to large groups of persons in Africa, Asia, and Latin America, but the assistance is not of the same quality as that provided to refugees under the Convention, being confined to an emphasis on return, local resettlement, or confinement in camps of refugees into Western countries. This dichotomy in international refugee law has been sought to be explained by the anxiety of the developed states to avoid difficulties of adjustment within their societies on account of cultural, ethnic, political, and economic differences.69
Differential treatment under the international refugee law proceeding essentially on considerations of territorial origin, ethnic distinctions, and cultural differences testifies to refuge being granted for reasons convenient to the state of refuge rather than considerations flowing from the broad concept of humanitarianism. The title to consideration for the grant of refuge should be determined by the nature of the forces compelling the seeking of refuge. This is reflected in the Preamble to the Convention, which, in its first two recitals, refers to the principle affirmed in the Charter of the United Nations and the Universal Declaration of Human Rights that human beings will enjoy fundamental rights and freedoms without discrimination, and that the United Nations is seized of a profound concern for refugees to whom it assures the widest possible exercise of those fundamental rights and freedoms. Having regard to the present state of the international refugee law, the criticism that "the rhetoric of human concern lingers, but the modern apparatus of international refugee law is more closely tied to the safeguarding of developed States than to the vindication of claims to protection"70 appears to possess some merit.
From what has been observed, it would seem that the context of the human rights culture as a value base for environmental law is not served by the present state of international refugee law. Mankind, both in its spatial as well in its intertemporal dimensions, is entitled to an environment of equality and freedom from discrimination. Natural disasters, destitute economies, and general political turmoil constitute environmental conditions as distressing as the fear of persecution on the grounds set forth in the definition clause of the Convention. When mass distress because of environmental disasters is added to man's misfortunes, the case for a broad-based humanitarianism acquires an even greater significance.
A more rational perspective characterizes the regional arrangements obtaining today in Africa and Latin America. The Organization of African Unity's Convention Governing the Specific Aspects of Refugee Problems in Africa grants protection not only to persons covered by the United Nations Convention, but also to persons who, "owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality."71 There is a specific obligation to receive refugees and to secure settlement of those refugees. The Organization of American States adopted the Cartagena Declaration, which also extends protection, in addition to the persons described in the definition clause of the United Nations Convention, to persons "who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order."72
Insufficient provision in the present international refugee law for the protection of refugees can itself provide the conditions for environmental degradation. When masses of people are uprooted from their homes and have to seek refuge in another country, the want of proper facilities brings in problems of health, want, and demoralization. An environmental hazard begins to take shape, whose dimensions can affect not only the refugees but may extend to the resident population itself. Tensions are bred and escalate with easy provocation and an atmosphere surcharged with violence invariably adds to the problem of maintaining sound environmental conditions. The right to a healthful environment is put into jeopardy, with consequences that could have been avoided by a wiser, more equitable, and more generous international refugee law.
1. Soft law
The developing international environmental law owes its origin to "soft law," which, it is now widely accepted, has a significant status in the process of norm-making. New norms conceived in response to the felt needs of international realities for filling a vacuum in the international law system or introducing provisos to existing law because of its rigidity are often evolved through constant renegotiation in the international arena. The Stockholm Declaration of 1972, regarded as a non-binding resolution, is of that nature. Principle 21 and other "principles" of the Declaration have been relied upon by governments, and their norms are to be found in state practice. And from its frequent citation in UN documents, Principle 21 may be said to have achieved the status of customary international law. UNEP, created pursuant to the Declaration, has made an important contribution in developing the corpus of international law. Periodic endorsement by the United Nations General Assembly of the priorities set by UNEP constitute an example of soft law.73 So have non-governmental organizations such as the International Law Association, which formulated the Montreal Rules of International Law Applicable to Transfrontier Pollution, and the Institute of International Law, which adopted resolutions on the Utilization of Non-Maritime International Waters, on the Pollution of Rivers and Lakes and International Law, and on Transboundary Air Pollution. Repeated observance of the suggested principles and rules, regarded as indicators of contemporary trends in the environmental law area, has prepared the way for the evolution, and subsequent adoption, of "hard law." In this, soft law acts as a catalyst. Meanwhile, the behaviour and conduct of states tend to follow the principles and rules embodied in soft law. National legislation and national courts, dealing with the responsibility of environmental protection, have often drawn inspiration and guidance from such soft law.74 Whereas in environmental protection hard law is not always readily possible in view of varying responses from state governments because of particular local economic conditions, societal attitudes, and the like, soft law plays an important role in providing direction and standards.
2. The World Bank
The principles and norms emerging from soft law relating to environmental protection have strongly influenced programmes of action everywhere, in international life and within national systems. Environmental values, for example, have now a definite and operational influence in banking systems. Nowhere has this been more evident than in the reorientation introduced in the activities of the International Bank for Reconstruction and Development. In the address delivered by Barber B. Conable, President of the Bank, he mentioned that lending for environmental, population, and forestry projects was increased; resources devoted to the environment were increased by more than 100 staff years; and environmental issues were fully integrated into the Bank's approach to development. A US$5 million Environmental Technical Assistance Program to accelerate the preparation of environmental projects was inaugurated. Environmental Assessment Guidelines were designed to strengthen the capacity of developing countries to deal with environmental problems and to ensure that the World Bank took environmental concerns into account at the earliest stage of designing development projects. The Bank decided to assist developing countries in reducing the emissions of greenhouse gases without adversely affecting development. An Energy Efficiency and Strategy Unit was created to deal with financial and policy issues. A Household Energy Unit was created for determining the most suitable means of delivering traditional and other more modern forms of renewable energy to the homes of the poor and to rural industry. A Gas Development Unit promoting the economic production, consumption, and export of natural gas was also envisaged.75
The World Bank has laid great emphasis on success for family planning programmes in developing countries and has also under taken studies for determining the legal status of women in the context of resource-management problems and also in relation to family-planning programmes.76 The norm of "sustainable development" has been consistently in the forefront of the World Bank's consideration of development projects, and it has focused upon incorporating environmental considerations into each stage of the project cycle of development funding. In acting as a leader in adopting and establishing sound environmental practices, the World Bank has set an example for other lending institutions.
3. The United Nations
Violations of the right to a healthful environment? like violations of some other human rights, will not easily gain consideration in the international plane having regard to the present constitution of international institutions. A member state of the United Nations may have the issue debated in the General Assembly, but there is considerable controversy on whether resolutions of the General Assembly have binding force77 or are merely recommendations.78
The United Nations Commission on Human Rights is empowered to consider violations of human rights by governments. The Commission assigns the matter to working groups or sub-rapporteurs, whose reports are debated and considered for adoption. Discussion in those proceedings of a violation of human rights committed by a government publicizes its conduct. The procedure is based on the expectation that there are few governments that are insensitive to condemnation by the international community. Besides, such public discussion results in the prescription of standards of conduct expected of governments and provides rules of guidance for future action. The resulting information is employed by individuals or groups within their own countries for the formulation of norms and their compliance by domestic administrative and judicial agencies, and for the purpose of securing reforms by law-making agencies. That information also enables non-governmental organizations to play a significant role in their contribution to the investigation and reporting of human rights violations. While violations of environmental rights by governments may effectively be the subject of complaint before the United Nations Commission on Human Rights, the problem enters a more difficult dimension when the complaint is addressed by an individual. The Sub-Commission of the Human Rights Commission has been empowered to permit individuals to petition it against violations of human rights. In the case of environmental rights violations, it is appropriate, in view of their individual and collective character, that standing be recognized in individuals as well as groups.
The International Court of Justice, as presently constituted by its Statute, is competent to entertain disputes between states only, and cannot take cognizance of a petition addressed by an individual to it.79 This inhibition may be removed by an appropriate amendment of its Statute. In the event of the competence of the Court being enlarged, an appreciable volume of environmental rights litigation can be expected to enter its doors. To cope with it, it may be necessary to consider the constitution of specialized chambers for environmental cases.80
In recent years, with the increasing prospect of international environmental law disputes, profound interest has been shown in suggesting other procedures and dispute-settlement fore. The Report and Final Recommendations of the International Congress on a More Efficient International Law on the Environment and Setting Up an International Court for the Environment within the United Nations81 has recommended the drafting of a Universal International Convention proclaiming the duty of all states to conserve and protect the environment; the creation of an international body within the United Nations system to guarantee the supervision, planning, and management of the world environment; the appointment of a United Nations High Commissioner for the Environment with adequate support facilities; and the creation of an International Court for the Environment, which should be accessible to states, United Nations organs, and private citizens.
Other recommendations include one mentioned in the Report of the Legal Experts Group of the World Commission on Environment in the form of a draft convention as well as General Principles on Environmental Protection and Sustainable Development. These recommendations envisage also the appointment of a United Nations High Commissioner for the Environment, who would hear individual complaints and issue reports, and a Commission for the Environment that would hear complaints from states and issue reports.
Another recommendation was made in the Hague Declaration82 on the Environment, which calls upon the United Nations to establish a new institutional authority "to monitor and enforce measures to reverse global warming and climate change." The proposal, however, does not go into a detailed consideration of the recommendation. Instead of a new centralized authority within the United Nations, one writer83 suggests the strengthening of the existing organs of the United Nations, such as the Security Council, the Trusteeship Council, and the Economic and Social Council, and an enlargement of the powers of the Secretary-General with a view to more effectively dealing with environmental problems and disputes.
Bilateral or multilateral treaties may provide for remedies for violations of environmental rights. A time-honoured mode of providing relief, they will be binding as between the states parties thereto.
There is clear evidence that the approach adopted by the international community to environmental rights corresponds to that applied to human rights generally. That is to be expected since the right to a healthful environment proceeds out of the international law of human rights itself. The international law system took a major turn when the human rights philosophy was made part of international jurisprudence. The sanctity attached to the doctrine of state sovereignty was diluted and human rights were accorded a super-eminent status in the international system. The right of an individual to conditions conducive to his development was recognized generally, and significant areas of the human rights law became accessible to intervention by foreign states.
The development of environmental law provides the second major turning point in the progress of international law. The international community has reached a stage where the individual is held entitled specifically to a natural and cultural environment ensuring the development of the different dimensions of his personality. Indeed, environmental law proceeds beyond the individual to the local or national community and even beyond, to the global community, having regard to the nature and character of the environmental phenomenon. The world has entered an era in which the fundamental relationship of man to the natural order is also beginning to dawn on him. Moreover, while the achievements of science and technology have been great and their influence far-reaching, man is becoming increasingly aware that the choice in employing that unprecedented power turns ultimately on his sense of moral responsibility towards his fellow men and to the planet itself. The significance of moral values has never been so important. In this ethos of morality and power there is something both of the West and the East, and one may conclude with what the Nobel Laureate Ilya Prigogine said:
We believe that we are heading toward a new synthesis, a new naturalism. Perhaps we will eventually be able to combine the Western tradition, with its emphasis upon experimentation and quantitative formulations, with a tradition such as the Chinese one, with its view of a spontaneous, self-organizing world.... Each great period of science has led to some model of nature. For classical science it was the clock; for nineteenth century science, the period of the Industrial Revolution, it was an engine running down. What will be the symbol for us? What we have in mind may perhaps be expressed best by a reference to sculpture, from Indian or pre-Columbian art to our time. In some of the most beautiful manifestations of sculpture, be it in the dancing Shiva or in the miniature temples of Guerrero, there appears very clearly the search for a junction between stillness and motion, time arrested and time passing. We believe that this confrontation will give our period its uniqueness.84
1. J.A. Passmore, Man's Responsibility for Nature, 17
(Scribner, 1976), cited in A.D. Tarlock,
"Earth and Other Ethics: The Institutional Issues," 56 Tennessee Law Review, 45 (1988).
2. Dale and Carter, "Topsoil and Civilization" (quoted in E.F. Schumacher, Small is Beautiful, 84 [Blond and Briggs, 1973]), say: "Civilized man was nearly always able to become master of his environment temporarily. His chief troubles came from his delusion that his temporary mastership was permanent. He thought of himself as 'master of the world, while failing to understand fully the laws of nature."
3. See "Developments in the Law: International Environmental Law," 104 Harvard Law Re view, 1 484, 1 492 (1991).
4. D.A. Kay and H.K. Jacobson, Environmental Protection. The International Dimension, 7,8 (Allanheld, Osmun and Co., 1983).
5. E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity, 297-327 (Transnational/United Nations University, 1989).
6. E. Brown Weiss, '´The Planetary Trust: Conservation and Intergenerational Equity," 11
7. L. K. Caldwell, International Environmental Policy, 16 (Duke University, 1984).
8. M. Cranston, What are Human Rights? (Basic Books. 1963), quoted in P. Alston, "Conjuring Up New Human Rights: A Proposal for Ouality Control," 78 A.J.I.L. 607. 615, n. 30 (1986): 'A human right by definition is a universal moral right, something which all (people) everywhere at all times ought to have, something of which no one may be deprived without a grave affront to justice, something which is owing to every human being simply because he is human."
9. W.P. Gormley, "The Right of Individuals to Be Guaranteed a Pure. Clean and Decent Environment: Future Programs of the Council of Europe," 381975 Legal Issues in European Integration.
10. World Commission on Environment and Development, Our Common Future, 348 (Oxford University, 1987).
11. The National Environmental Policy Act of 1969 (enacted by the United States Congress) Pub. L. No. 91-190, Section 101(a), 83 Stat. 852 (1970), speaks of the need to restore and to maintain environmental quality to aid in the "overall welfare and development of man," and Section 101(c), where Congress recognized that "each person should enjoy a healthful environment. "
12. W.J. Winslade, "Human Needs and Human Rights,'' included in Human Rights - Amintaphil 1, 29, 35 (1971).
13. A. Edel, "Some Reflections on the Concept of Human Rights," included in Human Rights- Amintaphil 1, 2 (1971).
14. Constitution of India, Part 111.
15. L.B. Sohn, 'The New International Law: Protection of the Rights of Individuals Rather than States," 32:1 American University Law Review, 9, 19 (1982).
16./d. at 11,12. 17. Id. at 16, 17.
18. Id. at 48.
19. As quoted by S.P. Marks. "Emerging Human Rights: A New Generation for the 1980's?"
(Stoffer Lectures), 33 Rutgers Law Review, 397, 441 (1981).
20. L.B. Sohn, supra note 15 at 61, quoting from Unesco
Symposium on the Study' of New
Human Rights: The Rights of Solidarity, 30 (Unesco, 1980).
21. L.B. Sohn, supra note 15 at 61. They have also been chromatically classified as blue," "red," and "green" rights. Jan Glazewski, "The Environment, Human Rights and a New South African Constitution," 171 South Africa Journal on Human Rights, 2 (1991).
22. Report of the United Nations Conference on the Human Environment, Stockholm. 1-16 June 1972 (U.N. Publ. Sales No. B.73.II.A. 14. 1973).
23. The Supreme Court of India has developed a respectable volume of jurisprudence in this respect with reference to Part 11, Article 21, Constitution of India.
24. Dr. H.J. Uibopuu, "The Internationally Guaranteed Right of an Individual to a Clean Environment," 1 Comparative Law Year Book, 107 (1977).
25. W.P. Gormley, Human Rights and Environment: The Need for International Co-operation, 34 (Sijthoff, 1976).
26. R.A. Falk, "The Logic of State Sovereignty Versus the Requirements of World Order.'' 27 Year Book of World Affairs, 7, 23 (1973).
27. W.P. Gormley, supra note 25 at 1.
28. Introduction to the Covenant on Civil and Political Rights 7 (L. Henkin, ea., Columbia University, 1981).
29. T. Iwama, Policies and Laws on Global Warming: International and Comparative Analysis, 11, 12 (T. Iwama, ea., Environmental Research Center, 1991).
30. P. Alston, "Conjuring Up New Human Rights: A Proposal for Quality Control," 78 AJ.I.L. 607 (1984).
31. S.P. Marks, supra note 19 at 442.
32. Dwivedi and Tiwari, "Environmental Protection in the Hindu Religion," in World Religions and the Environment (O.P. Dwivedi, ed.). ''[T]he Hindu Rishis of the Vedic and the Upanishadic era perceived the value of maintaining a harmonious relationship between the needs of man and the spectacular diversity of the universe. To them, nature was not only the mother that sustained their life, it was the abode of divinity. They did not believe that man's role on earth was to exploit nature to his own selfish purpose. Nor did they subscribe to the prevailing western world-view that the true end of man was essentially to dominate and control nature by all possible means. On the contrary, sanctity of life to them included not only the effort to seek salvation, but to seek it by developing a sacred attitude towards the spiritual significance of nature. Man, in Hindu culture, was instructed to maintain harmony with nature and to show reverence for the presence of divinity in nature. Consequently, a Hindu has not been at war with nature. Id. at 182.
Hindu culture, in ancient and medieval times, provided a system of moral guidelines towards environmental preservation and conservation. Environmental ethics, as propounded by ancient Hindu scriptures and the seers, was practiced not only by common man. but even by rulers and kings. They observed these fundamentals sometimes as religious duties, often as rules of administration or obligation for law and order. hut either way, these principles were properly knitted with the Hindu way of life. In Hindu culture, a human being is authorized to use natural resources, but has no divine power of control and dominion over nature and its elements. Hence, from the perspective of Hindu culture, abuse and exploitation of nature for selfish gain is unjust and sacrilegious. Id. at 184.
33. For fuller treatment of the subject, see the Introduction by A.M. Taylor and D.M. Taylor in World Religions and the Environment, supra note 32. See also J. Campbell, The Fligh of the Wild Gander (Viking Press, 1969).
34. A.M. Taylor and D.M. Taylor, supra note 33 at 24.
35. See F. Capra, The Tao of Physics (Shambhala, 1983).
36. To the Burmese "men are men, and animals are animals, and men are far the higher. But he does not deduce from this that man's superiority gives him permission to ill-treat or kill animals. It is just the reverse. It is because man is so much higher than the animal that he can and must observe towards animals the very greatest care, feel for them the very greatest compassion, be good to them in every way he can. The Burmese's motto should be noblesse oblige." H.F. Hall, "The Soul of a People," quoted by E.F. Schumacher in Small is Beautiful, 89 (Rupa and Co., 1990).
37. R.F. Nash, The Rights of Nature: A History of Environmental Ethics, 10 (University of Wisconsin, 1989).
38. C.D. Stone, "The Environment in Moral Thought," 56
Tennessee Law Review, 3, 5, 6
39. Id. at 11.
40. S. Toulmin, "The Case for Cosmic Prudence," 56 Tennessee Law Review, 29 (19X8).
41. Id. at 35. The two expressions are preferred to "non-homocentric" as more accurate in defining the natural order and man's position therein than homocentric perspective.
42. See Tarlock, supra note 1, for critical comments respecting the views of Professor Stone and Stephen Toulmin.
43. For a detailed and fully reasoned treatment of the subject, see E. Brown Weiss, supra note 5.
44. Id. at 293.
45. E. Brown Weiss, supra note 6 at 540-544.
46. L. Gündling, "Agora: What Obligation Does Our Generation Owe to the Next? An Approach to Global Environmental Responsibility? Do We Owe a Duty to Future Generations to Preserve the Global Environment?" 84 A.J.I.L. 190, 212 (199(1).
47. A.D. Tarlock, supra note I at 96; D.A. Kay and H.K. Jacobson. supra note 4 at 205.
48. D.A. Kay and H.K. Jacobson, supra note 4 at 203.
49. H. Kelsen, Pure Theory of Law, 62 (University of California, 1967).
50. J. Austin, Austin's Jurisprudence, Lectures on Jurisprudence. 413-415 (1973).
51. Policies and Laws on Global Warming, supra note 29 at 8, 9.
52. K. M'Baye, "Le droit au développement comme un droit de l'homme." 5 Revue des droits de l'homme, 503, 522 (1972).
53. G.A. Res. 3201, 29 U.N. GAOR, Sixth Special Sess. Suppl. No. 1, at 3, U.N. Doc. A/9559 (1974)
54. See R.Y. Rich, "The Right to Development as an Emerging Human Right," 23 Virginia Journal of International Law, 292 (1983).
55. North Sea Continental Shelf Cases, 19691. C.J. 47.
56. United Nations Charter, Preamble and Article 1.
57. Declaration of the Hague, 11 Mar. 1989, 28 I.L.M. 1308-10.
58. Joint Committee by Industrialized Nations at Paris Economic Summit, 16 July 1989, Sections 33-50, 28 I.L.M. 1296-98.
59. R. Dohse. Comment, "Global Air Pollution and the Greenhouse Effect: Can International Legal Structures Meet the Challenge?", 13 Houston Journal of International Law, 179, 204 (1990).
60. P. Alston as Member of the Panel on "Environment, Economic Development and Human Rights: A Triangular Relationship," Proceedings of the 82nd Annual Meeting, 51 (American Society of International Law, 1988).
61. P. Ellyard, "Creating an Ecologically and Economically Sustainable 21st Century," address at Australian Legal Convention, Adelaide, 9 Sept. 1991.
62. Address by Barber B. Conable, President, World Bank, on 11 Sept. 1989 in Tokyo, Japan, at the Tokyo Conference on the Global Environment and Human Response towards Sustainable Development.
63. United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Population, 28, U.N. Doc. E/CN.4/ Sub.2/1986/7 and Adds. 1-4 (1986).
64. Our Common Future, supra note 10 at 12.
65. See Constitution of India. Part IV, Article 46 and the Fifth Schedule.
66. Convention Relating to the Status of Refugees, 28 July 1951. 189 U.N.T.S. 150.
67. Convention Relating to the Status of Refugees, 31 Jan. 1967. 606 U.N.T.S. 267.
68. The definition of "refugee" in the Convention as adopted was: "For the purposes of the present Convention the term 'refugee' shall apply to any person who. . . as a result of events occurring before I January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country.... " The temporal limitation of the Convention was removed by the Protocol, so that the restrictive condition that the event that gave rise to fear of persecution should have occurred before I January 1951 was deleted.
69. For an analysis of the present state of international refugee law. see J.C. Hathaway, " A Reconsideration of the Underlying Premise of Refugee Law." 31 Harvard International Law Journal, 129(1990).
70. Id at 175
71. Cited in J.C. Hathaway, id. at 176, n.271.
72. Cited in J.C. Hathaway, id. at 176, n.275.
73. U. N. Environment Program: Report of the Governing Council. 42 U. N. GAOR Supp. (No. 25), U.N. Doc. A/44/25 (1989).
74. P.M. Dupuy, "Soft Law and the International Law of the
Environment." 12 Michigan Journal of
International Law, 420 (1991).
75. B. Conable, supra note 62 at 245, 246.
76. D. Joannides, "Restructuring the World Bank: The Environmental
Light Shines on the
Funding of Development Projects," 2 Georgetown International Environmental Law Review, 161
77. W.P. Gormley, supra note 9 at 56,
78. G.P. Smith, "The United Nations and the Environment: Sometimes a Great Notion," 19 Texas International Law Journal, 335, 339 (1984).
79. Statute of the International Court of Justice, Article 34(1).
80. Statute of the International Court of Justice, Article 26.
81. A. Postiglione, "A More Efficient International Law on the Environment and Setting Up an International Court for the Environment within the United Nations," 20 Environmental Law, 321 (1990).
82. Declaration of the Hague, supra note 57 at 1309.
83. C. Tinker, "Environmental Planet Management by the United Nations: An Idea Whose Time Has Not Yet Come?", 22 International Law and Politics. 793, 821 (1989).
84. I. Prigogine and I. Stengers. Order Out of Chaos: Man's New Dialogue with Nature, 22. 23 (Bantam Books, 1984).