Right to a Healthy Environment in Human Rights Law

Chapter 6
Right to a Healthy Environment in Human Rights Law

Jona Razzaque

1. Introduction

The human right to a healthy environment is indispensable for leading a life with human dignity. It is a prerequisite for the realization of other human rights. The fact that the environment and human rights are intrinsically linked, and that environmental degradation leads to poverty and human indignity, is not a contested issue. Since 1994, after the Ksentini report on ‘human rights and the environment’,1 there has been an expectation in both the human-rights and the environmental legal communities that this link would be discussed at policy-making levels. In 2002, experts from around the world were invited to assess the link between human rights and the environment and to clarify the scope of this linkage.2 It was the first time that the two United Nations (UN) bodies – the then Office of the High Commissioner for Human Rights (OHCHR) and the UN Environment Programme (UNEP) – decided to combine their efforts to explore the link between human rights and the environment. However, the meeting ended with the issuing of a very loosely worded statement.3 Similarly, only one sentence in the Johannesburg Declaration, adopted after the 2002 World Summit on Sustainable Development (WSSD), took account of the link between the environment and human rights.4 Before 2002, this link had been addressed in academic writings5 and in treaties such as the UN Convention on the Rights of the Child,6 the International Labour Organization (ILO) Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries,7 and the Aarhus Convention.8 At the regional level, the African Charter on Human and Peoples’ Rights (ACHPR)9 and the Protocol of San Salvador to the American Convention on Human Rights (ACHR)10 expressly recognize the right to a healthy environment. Recently, a Resolution of the UN Human Rights Council (UNHRC) also asserted that ‘a democratic and equitable international order requires’ the realization of the ‘right of every person and all peoples to a healthy environment…’.11

While the three core human rights instruments – the UDHR,12 the International Convention on Civil and Political Rights (ICCPR),13 and the International Convention on Economic, Social and Cultural Rights (ICESCR)14 – unequivocally guarantee the right to life and a right to health, there is no specific mention of a right to a healthy environment.15 Article 3 of the UDHR states that ‘Everyone has the right to life, liberty and security of person’, and Article 25 adds, ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services’, but does not include any specific reference to a right to a healthy environment nor does it link the human right to life or health and well-being to the right to a healthy environment. Nevertheless, it can be argued that the spirit of the UDHR includes the right to a healthy environment. For example, the preamble of the UDHR recognizes ‘the inherent dignity and inalienable rights of all members of the human family’, and, according to Kiss, the inherent dignity of human beings is closely related to a right to a healthy environment.16 In the absence of any explicit mention of such a right in the global human rights treaties, environmental protection largely depends on an expansive interpretation of the substantive rights to life, health, property and privacy. At the national level, for example, the content of right to life has been interpreted in some states to include the right to live in a balanced and healthy environment, the right to be free from pollution, and the right to have clean, unpolluted water and air.17

The anthropocentric and individual nature of human rights is argued to be unsuitable to protect the environment (discussed in Section 2 below). The argument is that a human-rights approach does not take into account the intrinsic value of nature – it only protects human well-being and prioritizes human needs where human beings are the victims and right holders.18 This anthropocentric bias can be seen in the title of the 1972 UN Conference on the Human Environment (Stockholm Declaration),19 the 1992 UN Conference on Environment and Development (Rio Declaration),20 and the 2002 WSSD (Johannesburg) Declaration.21 However, human beings are an integral part of the environment, some human activities are treated as a part of the ecosystem (e.g. Millennium Ecosystem Assessment),22 and substantive human rights (e.g. right to life, right to health) are linked to environmental protection. For example, in General Comment 14, the UN Committee on Economic, Social and Cultural Rights (CESCR) interpreted the right to ‘the highest attainable standard of physical and mental health’ in Article 12(1) of the ICESCR as ‘not confined to the right to health care’ but as also embracing a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extending to the underlying determinants of health, such as potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.23

A number of non-binding instruments, while interpreting human rights treaties, and UN agencies in their policy documents, make explicit reference to the right to a healthy environment (discussed in Section 3 below). There are ample cases in which the regional and national courts have interpreted the right to life liberally to accommodate the right to a healthy environment (discussed in Sections 4 and 5 below). In addition, the procedural rights (e.g. information, participation and justice) strengthen the substantive right to a healthy environment (discussed in Section 6 below). Noting these developments in international, regional and national law, this chapter concludes that there are some acknowledgements of the existence of a right to a healthy environment in human rights law.

While the normative development is slow at the international level, the link between human rights and the environment is elaborately debated by scholars and explored in national application. Scholars have highlighted that there is a common philosophical and political ground between human rights and environmental discourses as well as some important distinctions and areas of apparent dissonance.24 On the one hand, it would be artificial to conceptualize human and environmental rights as identical, since not all violations of human rights have a direct link to an environmental context, and vice versa. Moreover, there are cases in which environmental rights and rights of particular individuals or groups may come into conflict. On the other hand, failure to protect the environment may interfere with individual rights, and, in some cases, the right of the future generations.25 Clearly, environmental degradation presently has a direct impact on the rights of vulnerable human beings and communities, such as indigenous populations.26 There are also arguments in favour of a self-standing ‘right to environment’ that is not part of the human rights regime.27 This chapter, however, explores the development of a ‘right to a healthy environment’ within human rights law.

The first issue is whether there is a need to have a rights-based approach to protect the environment – be it within the human rights framework or as a self-standing right. On the one hand, it has been argued that if human beings are an inseparable part of the environment, a rights-based approach would provide better compliance, monitoring and dispute-settlement mechanisms and ensure priority over non-rights-based objectives.28 However, a distinct right to a healthy environment may not be acceptable globally, as it creates a corresponding duty for governments, the private sector and even individuals.29 Further, there are certain challenges linked to a strictly rights-based approach to environmental protection. For example, many states may not implement treaty-based rights in their domestic legal framework; policies and practices at the domestic level may vary; and developing countries may not have efficient and cost-effective monitoring systems.30 In addition, the international human rights response mechanisms may be inadequate to minimize environmental degradation, and may, to some extent, be undermined by the political agendas of the UN member states (e.g. 2002 Johannesburg Declaration). This is complicated by the fact that there is not yet an independent international court to assist in enforcing human rights internationally.

The second issue relates to the need to have a right to a healthy environment. It is true that a conservative interpretation of the right to a healthy environment will not be able to deal with the issues of biological diversity and protection of non-human species, harm caused to future generations by environmental degradation, and the trans-boundary impact of environmental degradation (e.g. climate change, deforestation, trans-boundary watercourses pollution). Is it possible to have a right to a healthy environment that includes biodiversity protection?31 Redgwell argues that a rights-based approach may not be ideal to protect the intrinsic value of the ecosystems if non-human value is not integrated into the interpretation and exercise of human rights.32 To her, the issue is not so much about recognition of a human right to a ‘clean, healthy or decent environment’ that includes non-human rights; it is more about ‘reconciling a diverse environmental and human rights agenda’.33 This reconciliation is now reflected in several resolutions of the UN Human Rights Council.34

Along with the advantages of using a human rights approach to protect the environment, Shelton adds that a rights-based approach may provide an ‘elevated environmental protection in the process of balancing it against economic consideration and property rights’ and an ‘enhanced recognition of the affirmative duties implicit in civil and political rights’.35 A rights-based approach to a healthy environment indicates that environmental protection is a precondition to the enjoyment of certain human rights (e.g. right to life, health, private life, and home and cultural rights).36 Moreover, the existing regional, human rights courts provide some remedies when there is no local remedy or weak international compliance mechanisms to protect the environment.37 Additionally, the human rights regime can benefit from the development in international environmental law. For example, the definition of information in the 1998 Aarhus Convention can be used to interpret the human right to information.38

There is a perception that the strong individualism in human rights discourse is a barrier to the collective action necessary to protect the environment from human activities that degrade its quality – but is this entirely fair? Engaging with this view, Holder and Lee note that ‘[p]utting in place substantive rights to environmental quality involves difficult questions of prioritisation between different environmental goods, and between environmental protection and other private goods’.39 If the right to a healthy environment is considered as a collective right, the identity of the right holders remains crucial; for example, do they have to fulfil certain criteria of eligibility, or who has the right to speak on behalf of the group?40 This raises the issue of whether the unborn (i.e. the future generations) can be possible holders of such a right and, in that case, who would be competent to assert that right on their behalf?41 One criticism of the collective right approach (also known as ‘third-generation’ right or solidarity right) is that such rights ‘are so vast that they encompass anything and anybody’42 and can be ‘nationalist’.43 Boyle adds that the collective right approach devalues ‘the concept of human rights’ and diverts ‘attention from the need to implement the civil, political, economic and social rights fully’.44 However, the concept of collective rights is recognized in several treaties, such as the ICCPR (Articles 27 and 47), the ICESCR (Article 25), the ILO Convention 169 concerning ‘Indigenous and Tribal Peoples in Independent Countries’ (Article 4), the ACHPR (Article 24), and the 1998 Aarhus Convention (Article 1). In a recent resolution of the UN Human Rights Council, the right to a healthy environment is recognized as an individual as well as a collective right.45

Others believe that the right to environment with different qualifications (e.g. safe, healthy, clean, and satisfactory) would be difficult to conceptualize as an inalienable right,46 or fit into a single category of human right. According to Boyle, first, the right to a healthy environment, as part of civil and political rights, can be used to give individuals, groups and non-governmental organizations (NGOs) access to environmental information, judicial remedies and political processes.47 Second, the right to a healthy environment as part of a social or economic right ‘would privilege environmental quality as a value, comparable to those whose progressive attainment is promoted by the 1966 United Nations (UN) Covenant on Economic, Social and Cultural Rights’.48 Third, the right to a healthy environment as part of a collective or solidarity right would give ‘communities (“peoples”) rather than individuals a right to determine how their environment or natural resources should be protected and managed’.49 Boyle opines that the first approach is clearly anthropocentric, and the second approach makes the right ‘vulnerable to tradeoffs against other similarly privileged but competing objectives’.50 Boyle favours the economic and social rights approach that will require the national governments to adopt policies to enable individuals to develop their full potential and to ensure progressive realization.51 Both the ICESCR and the ICCPR, however, use qualified language allowing states parties either a margin of discretion in implementing these rights52 or to derogate from some rights in times of public emergency.53

Anderson and Boyle list a number of existing rights that play an important role in environmental protection.54 The realization of certain civil and political rights – such as rights to life, association, expression, property, political participation, personal liberty, equality and legal redress – can make an important contribution to protecting the environment and natural resources. Churchill adds that certain economic, social and cultural rights – such as the right to health – can be linked to decent living or working conditions and may also include the protection of ecosystems.55 This is clear from the text of Article 12 of the ICESCR. Under Article 12(2)(b), the steps to be taken by the states parties to the ICESCR to achieve the full realization of the right to the highest attainable standard of health include those necessary for the ‘improvement of all aspects of environmental and industrial hygiene’.56 Thus, the improvement of environmental hygiene enhances human health and other human rights such as the rights to water, adequate housing, safe and hygienic working conditions, and adequate food. As explained by the Committee on Economic, Social and Cultural Rights (CESCR):

‘The improvement of all aspects of environmental and industrial hygiene’ comprises, inter alia, preventive measures in respect of occupational accidents and diseases; the requirement to ensure an adequate supply of safe and potable water and basic sanitation; the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health. Furthermore, industrial hygiene refers to the minimization, so far as is reasonably practicable, of the causes of health hazards inherent in the working environment. Article 12.2 (b) also embraces adequate housing and safe and hygienic working conditions, an adequate supply of food and proper nutrition, and discourages the abuse of alcohol, and the use of tobacco, drugs and other harmful substances.57

Anderson also considers that the right to self-determination, a collective right, can protect the environment in two ways: providing permanent sovereignty over natural resources and the right of the indigenous community over natural resources.58 While the state may not always apply the permanent sovereignty in an environmentally friendly manner, the right of the indigenous community has been addressed positively within the UN.59

While the status (e.g. as civil and political right or economic, social and cultural right), nature (e.g. moral or legal), and content of the right to a healthy (clean, safe, satisfactory or sustainable) environment are still unclear, that does not make the right itself non-existent. This, however, certainly leads to practical problems in the application of the right to a healthy environment at the national level, as well as ‘disagreement as to what it means to have such a right’.60

3. Substantive Discussion at the International Institution Level

With the 1994 UN report (Ksentini Report) clearly demonstrating the link between human rights and the environment,61 many international organizations have also addressed the connection between human rights and the environment in their organizational structures, activities and policies. The UNEP, World Health Organization (WHO) and UN Development Programme (UNDP) all accept the link between human rights and the environment.62 According to the ‘Draft Principles on Human Rights and the Environment’ annexed to the Ksentini Report of 1994, ‘All persons have the right to a secure, healthy and ecologically sound environment’, and ‘This right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible’.63 But while linkages between the protection of human rights and the protection of the environment are now increasingly recognized, the institutional arrangements and inter-institutional linkages (e.g. between the UNHRC and the UNEP) remain very much under-developed.

At the UN level, several non-binding reports outline the serious threat that human rights and the environment face, and confirm the links between human rights and environmental degradation.64 For example, Resolution 2001/57 highlights the impact of large-scale or major development projects on the human rights of indigenous people and their environment (depletion of resources, destruction and pollution of the traditional environment, etc.).65 The Special Rapporteur of the report on the right to food links implementation of the right to food with sound environmental policies and notes that problems related to food shortages ‘can generate additional pressures upon the environment in ecologically fragile areas’.66

In several general comments, the CESCR has confirmed that environmental policies impact on other human rights such as the right to food, health and water. For example, in General Comment 12,67 the CESCR stated that the right to food is ‘inseparable from social justice, requiring the adoption of appropriate economic, environmental and social policies, at both the national and international levels, oriented to the eradication of poverty and the fulfilment of all human rights for all’.68 Sustainability is one of the key components of the concept of the right to food, as stated in General Comment 12, ‘implying food being accessible for both present and future generations’.69 Similarly, in General Comment 14,70 the CESCR stated that the ‘underlying conditions of health’ include ‘food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment’.71 Moreover, General Comment 1572 on the right to water noted that water is a limited natural resource and ‘should be treated as a social and cultural good, and not primarily as an economic good’.73 Enjoyment of the right to safe drinking water is equally recognized as dependent upon the realization of other human rights, particularly the rights to housing, health, and food, as well as freedom of expression, freedom of association, and participation in public decision-making.74 In 2005, the Sub-Commission for the Promotion and Protection of Human Rights adopted the draft guidelines for the realization of the right to drinking water supply and sanitation, which refer to a clear link between the right to water and environmental protection.75

In addition, two resolutions of the UN Commission on Human Rights deal expressly with human rights and the environment. Resolution 2005/60 stressed the importance for states, when developing their environmental policies, to take into account how environmental degradation may affect all members of society, in particular women, children, indigenous peoples and disadvantaged members of society.76 Moreover, the resolution ‘calls upon States to take all necessary measures to protect the legitimate exercise of everyone’s human rights when promoting environmental protection and sustainable development’.77 However, weak wording makes the impact of these resolutions insignificant. For example, Resolution 2003/71 states that environmental degradation can have ‘potentially negative effects on the enjoyment of some rights’ and requests the Commission on Human Rights to produce a report on the ‘possible relationship between the environment and human rights’.78 Also, Resolution 2005/60 considers that environmental damage, including that caused by natural circumstances or disasters, can have potentially negative effects on the enjoyment of human rights and on a healthy life and a healthy environment’.79

Noting these resolutions and decisions in different UN fora, we can safely confirm that the link between human rights and the environment is acknowledged, albeit not always in a forceful or succinct manner. The question remains of the impact of these non-binding documents. Perhaps, they create a moral obligation, reaffirm commitments of the international community to protect the environment, establish an accepted standard of behaviour, and highlight a consensus on content of norms (e.g. actors, obligations). The normative value of a declaration or resolution cannot be ignored if one considers the UDHR, which is a declaration and provides an example of hardened ‘soft law’. While it may be too early to conclude that there is an established right to a healthy environment within the UN fora, the resolutions linking environmental protection to indigenous people’s rights; water, food and housing rights; climate change; toxic waste; and weapons of mass destruction make it easier to outline the content of the right to a healthy environment.80

4. Discussing the Link in International Courts

The inseparable link between human rights and the environment was summarized in the Gabcíkovo-Nagymaros case81 by Justice Weeramantry (as he then was) in the International Court of Justice (ICJ) as follows:

The protection of the environment is … a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.

This recognition of sound environment as a basic condition of right to life and that the deterioration of environmental quality can impair the fulfilment of other human rights, such as right to health, right to family life and right to property, is not an isolated comment from the ICJ. Regional human rights bodies in Europe, the Americas and Africa have examined cases that allege violation of human rights and environmental degradation and have assessed the link between human rights and the environment.82 Within the European Court of Human Rights (ECtHR), the claims for environmental protection are primarily based on the violation of the right to private life and home.83 However, the application of this right does not include a general right to protect the environment. In addition, Article 8 can be restricted if the activity falls under Article 8(2) of the 1950 European Convention on Human Rights and Fundamental Freedoms (ECHR)84 (e.g. authorized economic activity). The only ground for solace is that the activity must have a legitimate aim, and must be lawful and proportionate to the legitimate aim pursued. In the Hatton case,85 the ECtHR, when faced with competing interests (e.g. right to respect for private life versus the right to development), applied the ‘fair balance’ test while balancing the economic interests (e.g. economic contribution from flights) of the country with the rights of the affected individuals (e.g. noise pollution).86 These decisions by the ECtHR show that there is a positive duty of the government to take measures to prevent environmental pollution, and this duty is owed only to the individuals whose rights are affected.87

A bolder approach has been taken by the African Commission on Human and Peoples’ Rights in its interpretation of the ACHPR that expressly links environmental quality and human rights. Article 24 of the ACHPR provides: ‘All peoples shall have the right to a general satisfactory environment favourable to their development’. The African Commission dealt with the scope of this guarantee, in the Ogoniland case,88 which involved the disposal of toxic waste that poisoned soil and water, and affected human health. The commission noted that the right to a general satisfactory environment (Article 24) ‘imposes clear obligations upon a government’, requiring the state ‘to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources’.89 In addition, the commission outlined various procedural tools that may facilitate the enforcement of substantive right to environment, such as environmental impact assessment, public information and participation, access to justice for environmental harm, and monitoring of potentially harmful activities.90

Several conclusions can be drawn from a brief survey of the cases outlined above. First, there is a need for express provision on environmental quality in binding instruments (e.g. the ACHPR). Second, states and non-state actors can be held responsible for action or inaction causing environmental degradation. Third, strong procedural techniques are required to enhance the enforcement of substantive rights (e.g. Ogoniland case). Finally, it is essential to develop remedies for violations of environmental rights such as remedial action or compensation (e.g. the Hatton