Macquarie Journal of International and Comparative Environmental Law
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Macquarie Journal of International and Comparative Environmental Law |
|
LAURA HORN[*]
There is some evidence that an international right to environmental protection is emerging at international law. The potential development of a human right to a healthy environment and the possible application of this right could provide an alternative legal means of protecting the environment. However this development poses many difficulties due to uncertainty about the extent of its application and the potential conflict with existing international environmental law. Another area of uncertainty is whether a human right to a healthy environment could incorporate an intrinsic view of the environment.
The primary argument in this article is that the concept of the common concern of humankind[1] could link other environmental concepts (sustainable development, the precautionary principle and intergenerational and intragenerational equity) into the operation of this human right. One advantage of this relationship is that an intrinsic attitude to the protection of the environment could be incorporated into a human right to a healthy environment.
A human right to a healthy environment could be adopted at both national and international levels to focus on the prevention of environmental degradation. Assuming that this emerging right to environmental protection is implemented it would be necessary to accommodate individual as well as group rights and to establish institutions to resolve disputes. In order to enable this right to be enforceable the lack of standing of individuals, groups, non-governmental organisations (NGOs) and corporations in international courts will need to be addressed. One possibility is the establishment of an appropriate environmental tribunal or commission to enable representation not only of interested individuals or groups but more importantly NGOs which aim to protect the interests of the environment and should have standing.
Another possibility raised in this article is that the fundamental human rights such as the rights to life and health continue to be relied upon by claimants to justify their arguments that they are entitled to recompense for environmental degradation. In this case, the concept of the common concern of humankind can act to link fundamental considerations of sustainable development, the precautionary principle and inter and intragenerational equity so that they are considered when determinations are made in cases on these questions. The concept encourages decision-makers to integrate these environmental concepts into their reasoning when resolving disputes.
This section introduces the prospect of the development of a human right to a healthy environment. The Universal Declaration of Human Rights,[2] which is not legally binding as such,[3] provides a guide to the interpretation of the human rights provisions in the UN Charter. Some of the provisions in this declaration are accepted as either general principles of law or are basic concerns of humanity.[4] In 1966 two international covenants were adopted together with a protocol to further elaborate human rights. These two covenants are the UN Covenant on Economic, Social, and Cultural Rights and the UN Covenant on Civil and Political Rights and Optional Protocol.[5] As with other international agreements these covenants only have binding force on the parties to the covenants. There is no clear statement of the human right to a healthy environment in the abovementioned covenants[6] although there is a connection made between human rights and a healthy environment in the International Covenant on Economic, Social and Cultural Rights.[7]
The concept of a human right to a healthy environment has developed from the first principle of the Stockholm Declaration which states that:
Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.[8]
The Stockholm Declaration does not specify the right to a healthy environment, as such, but it does claim the right to adequate conditions of life in a temporal perspective to safeguard the environment for future generations. There is an implication in this principle that a healthy environment is necessary for the appreciation of other human rights.[9] In fact many national constitutions now include the right to a healthy environment and to conservation of the environment.[10]
In the international forum the World Commission on Environment and Development (WCED) Experts Group on Environmental Law adopted the following principle, ‘all human beings have the fundamental right to an environment adequate for their health and well-being’.[11]
The formulation of the human right adopted in the African Charter on Human and Peoples' Rights[12] differs. According to Article 24, ‘All peoples shall have the right to a general satisfactory environment favourable to their development.’
The Convention on the Rights of the Child[13] takes into account the aim of the education of children to include ‘The development of respect for the natural environment.’
Principle 1 of the Declaration of the UN Conference on Environment and Development (Rio Declaration)[14] does not specifically express human entitlements as a human right, ‘Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’
The failure of the Rio Declaration to specifically refer to the individual human right to a healthy environment could be viewed as a setback in the development of this right.[15] In each of the above formulations the terminology is different and these variations only serve to make any hypothesis about the likely formulation of a human right to the environment difficult. Indeed, overall, these principles are inadequate to establish that there is a general legal human right to a healthy environment at international law as they provide evidence of the development of ‘soft’ law only.[16]
It is important to recognise though, that some regional[17] and many national instruments[18] accept such a human right. There is increasing evidence that the principle of the human right to a healthy environment is maturing as over the past twenty years many States have adopted this principle.[19] A similarity in State laws may provide evidence of the emergence of custom at international law.[20] It is possible that other international agreements will include the right more often in the future.[21] If this is the case, then similar procedures could be used in international environmental law as in human rights law for enforcement and preventative measures.[22] The difficulty with this approach is that it emphasizes safeguarding the environment to humans without adequate emphasis on ecocentred concerns, leading in turn to a continuation of piecemeal international legal regulation of environmental concerns.
Human rights fall within the ambit of the common concern of humankind concept. In fact there is a clear link between this concept and human rights as a common concern of mankind must be human survival.[23] The link between environmental conservation and human rights was accepted by the Meeting of the Group of Legal Experts to examine the concept of common concern of humankind (UNEP Group of Legal Experts). However, this body preferred to link the two areas by broadly interpreting the rights to life and health rather than entering into the controversy over the concept of generations of human rights.[24]
It should be noted that some new human rights may be receiving gradual recognition in the international community including the right to a healthy and balanced environment.[25] Some commentators argue strongly in favour of the development of the international human right to a healthy environment but there is also criticism of this proposed development.[26] The current position appears to be that an international human right to environmental protection is emerging and remains at an early stage of development.[27] There is an acceptance of this right not only at the national but also at the international level[28] and some international agreements have recognised the connection between the protection of the environment and human rights.[29] It is apparent that these two fields are interdependent for the rights to life and health are fundamental human rights and if these are lost then no other human rights can be achieved:
That means that the whole development of the environmental law, on national and international levels, contributes to the promotion of human rights, and vice versa enjoyment of all human rights helps in the battle for better environment.[30]
There are some important difficulties to overcome as far as the advancement of the human right to a healthy environment is concerned. These include the problem of its anthropocentric focus,[31] and also the failure to establish the definition of this human right and procedures for making it effective.[32] Commentators have different views about whether the emergence of an international human right to a healthy environment is appropriate in the light of the strong development of international environmental law. Some argue the development of this right is a likely outcome of the development of international environmental law.[33] Others point out that this development may be appropriate in national jurisdictions but is inappropriate in the international legal system.[34]
The following section explains the difficulties involved when there is a lack of certainty about the definition of the human right to a healthy environment. Next there is a short summary of the potential development of this human right as explored by Ksentini in the Final Report of the Sub-Commission on Human Rights and the Environment (Ksentini Report)[35] and as set out in the Draft International Covenant on Environment and Development (Draft Covenant).[36] Following these sections there is an exploration of the concept of the common concern of humankind and a discussion of its potential ambit. Later in the article there is a consideration of the impact of the common concern of humankind on other human rights such as the rights to participation and information. The final sections examine the extent to which environmental protection is linked to existing human rights including the human rights to life and to health through the common concern concept.
Shelton proposes that there are three main views of how environmental protection and human rights can be considered together. These are:
1. That as environmental protection is aimed at improving the standards of human life then there could be an established category of human rights based upon protection of the environment.[37]
2. That the main aim of environmental protection is to conserve nature. As human beings form only a part of the natural system then human rights should be subject to the main goal of conserving nature.[38]
3. That the two policies of environmental and human rights protection are different but can share common social aims. Each field can contribute to the achievement of the aims of the other.[39]
The implication in the formulation of a human right to a healthy environment is that this right is based upon the human need for survival.[40] This approach has been justified because conservation of the environment is necessary to raise the quality of human life.[41] The problem with this approach is that it emphasises the superiority of human beings over nature. It strengthens the utilitarian theory and the proposition that the environment continues to be primarily available for the welfare of human beings.[42]
The lack of an appropriate definition of the human right to a healthy environment is one of the main obstacles to the development of this right.[43] The term ‘environment’ could be defined broadly to include the whole of the planet, or it could be interpreted more restrictively as limited to the immediate vicinity of the specific human or humans.[44] The other problem with this emphasis on humans in the concept of ‘human right’ is that when environmental issues are considered then environmental objectives may be evaluated as subject to human priorities (such as employment).[45]
The human right has been described as the right to a ‘healthy’ or ‘decent’[46] or ‘clean’ environment.[47] These general definitions would require further precision in order to clarify the uncertainty about the extent of this right. Interpretation and refinement of this right could be left to the decisions of courts and relevant institutions.[48]
It is possible to view the concept of environmental rights as rights of the environment. Another view is that environmental rights are the rights of humans to a healthy environment.[49] It is likely that scientific research would be required to investigate the particular circumstances in issue to determine whether the human right is being protected or not. There would need to be opportunities to include expert evidence when the dispute involving the human right to a healthy environment is being decided.
There is no consensus about what the substance of an environmental right is or what it means.[50] Kiss has proposed that the right is really one which requires conservation of the environment and considers that this right includes preservation and enhancement of the environment.[51] However even this definition necessitates further elaboration. Another problem is that the right itself could be interpreted as a healthy environment for human needs not taking into account the interests of other species or members of the ecosystem.[52] For the purposes of this article, the formulation of the human right to a healthy environment will be adopted. This formulation could also be expressed as the right to a clean environment and can be stated as follows:
that the environment must be healthy in itself − free from “diseases” that hinder its ecological balance and sustainability − and that it must be healthful, that is conducive to healthy living.[53]
This definition will extend the words ‘healthy living’ so that they will apply to all life forms within the ecosystem in question. So a human right to a healthy environment includes the right to an ecologically balanced and sustainable environment which permits healthy living for all of its inhabitants. This right can be linked to the right to sustainable development.[54] Or, rather the two aspects can be integrated so that the human right to a healthy environment necessarily incorporates the principles of sustainable development. In order to avoid an anthropocentric focus, the definition can be expanded to include an intrinsic focus. That is a recognition that all elements in the environment are interlinked and have a value in themselves independent of human needs.[55]
The application of the human right to a healthy environment is likely to vary depending upon whether the standard is being applied in a developing or in a developed country. This has led to arguments that the standard is ‘an empty formal shell’[56] if there are differing standards of the human right to a healthy environment depending upon the situation in which it is being applied.[57] However sustainable development could provide a general standard to balance the duties required of developing countries based upon common but differentiated responsibilities as against those of developed countries.
Some commentators support the present existence of a human right to a healthy environment based on soft law instruments.[58] However the general view is that there is currently no human right to a healthy environment at international law but it may be possible to rely upon other human rights such as the human right to life and the right to health.[59]
Two approaches to the consideration of the human right to a healthy environment in international environmental law are found in the Ksentini Report and in the Draft Covenant.
The UN Sub-Commission on Human Rights decided to carry out a study on ‘human Rights and the Environment’ after there were increasing developments in national jurisdictions towards incorporating an environmental right in their constitutions or legal systems. It is arguable that the current traditional international legal interpretation of human rights is inadequate for these rights to protect the environment.[60] One of the aims of the Ksentini Report was to ensure that human rights law also covers the protection of the environment.[61] However the draft Declaration of Principles on Human Rights and the Environment annexed to the report extends the existing human rights regime much further to include an international human right to a healthy environment as referred to in the following Principle 2:
All persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible.
Ksentini recommends that the right to a satisfactory environment could in its ‘human rights’ element be given ‘immediate implementation’ by the relevant bodies.[62] This right is connected to other human rights (such as the right to life, the right to work and the right to health) and is closely connected to the right to development.[63] These substantive aspects are also linked to the procedural rights such as rights to information and due process.[64] Overall this report focuses on the relationship between procedural and substantive rights.[65]
The problem with this redirection of international law is that it leads to an anthropocentric interpretation of human rights[66] and it is unlikely that institutions which supervise human rights matters would have the technical and scientific expertise to give adequate consideration to environmental issues.[67] Overall this approach could well be unnecessary. International environmental law has developed so that the wide range of treaties combined with the development of soft law instruments and customary law has led to broad coverage of environmental issues.[68] Some commentators argue that the introduction of a new human right to a healthy environment may add little to the progress achieved already and could, in fact, hinder the development of international environmental law.[69] Another difficulty is that international environmental legal rules would have to be prepared for adaptation to human rights law even though rules and principles have already emerged in international environmental law.[70] Many environmental issues are also unsuited to resolution based upon human rights law. Environmental problems can be very technical because they usually involve the balancing of many competing interests and the consideration of the causes of environmental damage.[71] Often the cause (such as the method of production) has economic implications which are not likely to be taken into account in human rights proceedings.[72]
One means of reconciling the two different policies of environmental and human rights protection is by referring to Shelton's third view,[73] that is by recognising the contribution that each field can make to the other. It may be necessary not only to balance competing rights[74] but also to facilitate integration both in the governmental and judicial and arbitration decision making processes. Integration can include the consideration of environmental, social, (human rights) and economic aspects as part of the decision.[75] Some commentators have raised the question of whether it is possible to achieve this integration but provided that the decision maker has the appropriate expertise and access to specialised information from other disciplines then this integration would be possible and has occurred in other areas of international law such as trade law.[76]
The proposed Draft Covenant (which is only a draft document and has no legal status) adopts a holistic approach to the environment recognising the interdependency and interconnectedness of ecosystems.[77] Two of the aims of the development of this Covenant were to establish a framework for the development of international law and to provide an agreed statement of fundamental environmental principles.[78] It is also possible to view the common concern of humankind in a wider and less anthropocentric dimension by considering the inclusion not only of legal obligations for natural systems but also the possibility of granting legal rights to natural systems.[79] The Draft Covenant refers to the responsibility of the parties to the Covenant to progress towards the realisation of people to ‘an environment and a level of development adequate for their health, well-being and dignity’.[80]
The next section considers the origins of the concept of the common concern of humankind in international environmental law. This will be followed by an examination of how the relationship between this concept and human rights encompasses environmental principles and integrates them into the human right to a healthy environment.
The common concern of humankind has been linked to areas of the global commons and also to areas falling solely within State jurisdiction. It has been used in relation to the Earth’s climate[81] as part of the global commons, as well as to the conservation of biological diversity[82] which falls within the ambit of State responsibility. This concept ‘implies a common responsibility to the issue based on its paramount importance to the international community as a whole’.[83] It can be distinguished from the common heritage of humankind because the common concern of humankind is not restricted to areas beyond national jurisdiction. A necessary implication of the common concern of humankind is that States have a duty to cooperate to ensure that the climate and biological diversity is protected for the benefit of present and future generations.[84] It can be further implied that the States protect the area in the role of stewards or trustees with duties to present and future generations.[85]
The common concern of humankind was introduced as an environmental concept in response to international negotiations on the need to counter the greenhouse effect. One suggestion was that the conservation of climate be considered the ‘common heritage of mankind’[86] but, in fact, the common concern of humankind was accepted as the preferable concept to apply to the protection of the Earth’s climate.[87] The following indicates the soft law instruments which support the application of the common concern of humankind as an environmental concept and assist to determine its likely future development.
To date, the common concern of humankind has been referred to in General Assembly resolutions, the preambles of conventions and in an increasing number of conferences, declarations and international reports.[88] The development of this concept in recent environmental agreements has emerged after there were proposals by Malta in the United Nations General Assembly that the conservation of climate be a common heritage of humankind.[89] In fact one General Assembly resolution refers to both the proposal that the conservation of climate be considered part of the common heritage of humankind and then to the recognition that ‘climate change is a common concern of mankind’.[90] Other General Assembly resolutions have also acknowledged that climate change is a common concern of humankind[91] as did the Declaration of the Hague (the Hague Declaration).[92] There have also been conferences, declarations and reports which have recognised the significance of the common concern of humankind in relation to climate change.[93] This repetition of the common concern of humankind concept particularly in relation to conservation of the atmosphere in texts which are not legally binding is an example of the development of soft law.[94] Dupuy follows the similarities in the soft law instruments referring to the common heritage of humankind and the common concern of humankind in relation to the atmosphere and concludes that:
If this phenomenon continues, it will likely have some legal consequence, particularly with regard to the environmental responsibility that the present generation has vis-à-vis future generations.[95]
This concept has also been referred to in the preambles of two recent international environmental conventions, the Framework Convention on Climate Change (Climate Change Convention)[96] and the Convention on Biological Diversity (Biological Diversity Convention).[97] Even though the preambles of these conventions do not contain binding commitments, they do indicate the context and background to the convention.[98] The continued repetition of this concept indicates a willingness by States to accept this concept and its application to international environmental law.
In the Climate Change Convention[99] the common concern of humankind is applied to the conservation of the atmosphere. Beyond climate change, in some instruments the common concern of humankind has been applied to concern with the exploitation of natural resources.[100] In particular, the Biological Diversity Convention[101] states that the conservation of biological diversity is a common concern of humankind. The common concern of humankind has also been applied to the environment generally.[102] It is however interesting to note that the common concern of humankind was not included in the preamble of the Forest Principles. The focus of the latter instrument is not on the global responsibility of humanity for forests but rather on the responsibility of individual governments and local communities.[103] According to the preamble, paragraph (f) states (in relation to forests):
their sound management and conservation are of concern to the governments of the countries to which they belong and of value to local communities and to the environment as a whole.[104]
A convention which fails to specifically refer to the common concern concept is the Convention to Combat Desertification in those Countries Experiencing Drought and/or Desertification, Particularly in Africa[105] (Desertification Convention). However, there are statements with similar implications in the preamble as follows:
Affirming that human beings in affected or threatened areas are at the centre of concerns to combat desertification and mitigate the effects of drought,
Reflecting the urgent concern of the international community, including States and international organisations, about the adverse impacts of desertification and drought ...
Acknowledging that desertification and drought are problems of global dimension in that they affect all regions of the world and that joint action of the international community is needed to combat desertification and/or mitigate the effects of drought.
Whilst the common concern formula is not used, the above statements indicate that in fact desertification can be considered to be a common concern of humankind.[106] This convention also places areas of desert which are within national jurisdiction and subject to claims by States of exclusive sovereignty under international inspection.
The potential ambit of the common concern of humankind as a concept in international environmental law was explored by a meeting of legal experts in 1990.
The Meeting of the Group of Legal Experts to Examine the Concept of the Common concern of humankind in Relation to Global Environmental Issues came to the following conclusions (in summarised form):[107]
• The common concern of humankind is not a rule of general international law but might develop into a principle of customary law.
(a) The ‘common concern’ is closely related to other concepts particularly the ‘common heritage’, ‘erga omnes obligations’, ‘jus cogens’ and ‘global commons’. The ‘common concern’ was accepted as a concept because it avoids the controversies of the ‘common heritage’ concept.
(b) International law, the common concern of humankind is an area akin to that of 'public law' in domestic legal systems. International law is changing in a similar way to the emergence of the distinction between public and private law in domestic jurisdictions.[108] So community interests (like public interests) are overtaking reciprocal and bilateral relations in international law.
• It is hard to define the common concern of humankind concept, particularly as 'concern' could apply to the ‘causes’ as well as to the ‘responses’[109] to the problem. ‘Mankind’ implies intergenerational rights, however it is difficult to consider generations as the subjects of international law.
This reference by the group of Experts to ‘mankind’ or ‘humankind’ is also significant because it links the common concern of humankind to intergenerational and intragenerational equity.[110] This means that the common concern of humankind is well-suited to be a major concept in international environmental law as the issue of sustainable development[111] and equity are fundamental to the protection of the environment. The Group of Legal Experts restricts the application of rights so that they can only be invoked by the subjects of international law. However, it is possible to anticipate that the interests of future generations may be able to be represented at international law.[112] Indeed this is likely to be necessary in order to ensure the adequate protection of the global environment. There have been suggestions that an office for a guardian to represent future generations be set up.[113] This representative could be established as a new UN institution or the Commission for Sustainable Development (CSD) could be designated to act with this capacity. Alternatively, an individual ombudsperson could be appointed.[114] Another possibility is that an arrangement with interested NGOs could be organised with guardianship functions.[115]
• The concept can be applied to environmental problems as well as specifically to protection of the climate.
• The ‘equitable sharing’ concept is a subsidiary concept to the common concern of humankind particularly in respect of climate change. This imposes a burden on developed countries proportional to their past or present responsibility for the deterioration of the atmosphere.
‘Common concern means common actions to achieve common goals’[116] − the ‘concern’ element leads to the obligation to take action and so forms the basis for establishing legal obligations. These concerns developed as a result of varying contributions to environmental deterioration from different countries. So countries have common but differentiated responsibilities[117] as far as their actions to remedy environmental degradation are concerned.
• The application of the common concern of humankind achieved a balance between sovereignty and environmental protection and an indication of this balance is found in Principle 21 of the Stockholm Declaration.[118] Principle 21 states:
States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
It can be seen from the role that the common concern of humankind plays in the Climate Change Convention[119] and the Biological Diversity Convention[120] that it acts to erode the concept of sovereignty by emphasising the need for the priority of protection for the environment. Common concern draws the source of the concern (even if the problem is within a State’s jurisdiction and arguably within its exclusive sovereignty) to the attention of the international community.[121] The concept also indicates that action is necessary to address the concern.
• The link between human and environmental preservation should be recognised. ‘A bridge between human rights protection and environment protection should be established by the fundamental rights to life and health in their wide dimension.’[122] There should also be a recognition of the dilemma for developing countries where poverty can prevent them from taking advantage of more informed methods of development.[123]
The comments by the UNEP Group of Legal Experts are expanded upon by Trindade, who examines the process of globalisation in human rights protection and in environmental protection.[124] Trindade follows this process in environmental protection by referring to international instruments and treaties developed in the common interest of mankind (or humankind).[125] Environmental protection can be considered in the spatial dimension as the recognition of transboundary pollution developed at international law. Later, the development of global environmental protection occurred as can be seen from the emergence of international legal protection for the ozone layer. This globalisation is also reflected in the development of the common concern of humankind concept which now applies to the international community's efforts to prevent climate change.[126]
Birnie and Boyle explain that the concept of the common concern of humankind indicates global responsibilities on the part of states which extend beyond geographic boundaries.[127] They indicate that the implication which can be drawn from this concept is that states have a common responsibility to assist in the sustainable development of global resources.[128]
In order to take account of the rights of all elements of the ecosystem it is necessary to consider perspectives other than from an anthropocentric viewpoint. In fact, on the basis that the environment is a common concern of all humankind then the right could be available to all members of the ecosystem as collective rights. So if a habitat is legally protected, according to Stone's view, then the habitat would be legally considerate and able to have standing to ensure that it is protected.[129] If this is the case, the consideration of these rights is far more complex than Trindade anticipates.
Certainly the system of implementation of these collective rights would require the balancing of the different interests involved[130] together with the emphasis on the role of humans as stewards of their environment. A different system of supervision of these interests would need to be devised as the human rights are generally more concerned with individual human interests. Individual claims could lead to a narrow focus for the making of environmental policy decisions rather than opening the decision to a variety of views on the environmental issue.[131] It may be possible to have representatives who act on behalf of interest holders who may be other living creatures or even inanimate natural objects[132] although there could be problems because these considerations could result in proceedings being very complicated. In any event, national legal systems may play an important role in giving effect to international law.[133] However a focus upon the need for environmental protection to take into account all aspects of the ecosystem at international law could lead to State awareness of these issues.
The reference to ‘human right’ itself is necessarily anthropocentric and implies that environmental concerns are subject to human activities.[134] Birnie and Boyle suggest that there is ‘a need for integration of human claims to a decent environment within a broader decision-making process’.[135] As human rights fail to provide for adequate consideration and implementation of environmental protection there remains the necessity to continue to reinforce existing international courses of action aimed at the protection of the environment.[136] This is particularly important as human rights protection will generally not incorporate protection for ecosystems, species and other parts of the natural system.[137] The common concern concept could link to the human right to a healthy environment to facilitate the development of a system which enables all relevant social interests to be considered together, for example the rights of the individuals and future generations to be protected, the rights of groups (such as indigenous peoples) to be respected and environmental concerns to be considered together with other human interests.[138] The integration of decision making processes could assist to balance these different interests.[139]
The social dimension in the common concern of humankind occurs where all groups and individuals in society are able to take action against the environmental hazard. In circumstances where environmental wrongs occur there are procedures for individual complaints to be referred to human rights committees such as the Human Rights Committee, the Committee on the Elimination of Racial Discrimination and the Committee against Torture.[140] There are also some avenues for NGO’s to approach the Human Rights Commission or the Sub-Commission on Prevention of Discrimination and Protection of Minorities to raise questions of environmental concern to them.[141] However one of the difficulties in the area of international environmental law is the limited range of avenues available at the present time for effective adjudication of international environmental disputes where representatives of the environment are able to present their case. Only states have access to the International Court of Justice (ICJ)[142] and this restriction on standing places limitations on the ability of representatives for the environment to present their case. Other fora such as the European Court of Human Rights and the World Trade Organisation have been established to deal with specialised areas in international law but lack an ability to cater for environmental problems[143] other than in a restrictive manner. This had led to suggestions that an International Court for the Environment[144] or an International Arbitration and Conciliation Court with expert arbitrators and conciliators in environmental matters[145] could be established. The advantages of new dispute resolution institutions are that they could be established to enable representation on the part of NGO’s, they could manage disputes concerning the interpretation of international environmental agreements and deal with particular environmental issues concerning groups such as indigenous peoples.[146]
The other advantage is that the court or tribunal which is established with the expertise to deal with environmental matters could specifically address the right to a healthy environment based upon issues of environmental harm rather then individuals and groups attempting to seek redress based upon protection of existing human rights (often without success).[147]
One means of accepting the human rights option to a healthy environment would be to emphasise that the necessity that a healthy environment exists is a precondition before other human rights (such as the right to life) can be implemented.[148]
Gibson argues that:
This is called the ‘indispensability’ theory. The satisfaction of collective rights, such as the rights to a clean environment, is a prerequisite for the materialization of individual human rights. A clean and healthy environment is essential to the enjoyment of basic human rights − even the right to life itself. We are confronted by the need for all humans and all species to survive. The international community must aim at saving all members of the ecosystem. Part of that aim will be the protection of the most basic human right, the need to survive. To talk of protecting other basic human needs is academic unless that need is met.[149]
The abovementioned view in effect supports the reinforcement of existing procedures for the protection of the environment. Gibson proposes that all participants in the ecosystem could have access to the right to a healthy environment and this right would be considered as a fundamental requirement for all life forms. It is important to note that Gibson is concerned only with life forms and not other non-living members of the ecosystem such as mountains and bushland, which Stone claims also have rights.[150] Gibson also emphasises the collective survival of all people as opposed to the focus of human rights on individuals.
Granting of rights to the environment as a whole is a recognition of its value, not to us as consumers of environmental amenities, but as an integral part of life itself. This is consistent with the philosophy of deep ecologists.[151]
The significance of this right is that it carries corresponding duties for humans who have responsibilities to protect the environment. These duties require ‘international acceptance of a right to benefit individuals, peoples, animals and plant life in a holistic and interconnected manner’ to be effectively implemented.[152] Gibson’s arguments in favour of establishing the right to a clean environment as a precondition possibly could lead to the failure to adequately implement human rights as some developing countries may argue that they cannot afford to cater for both.
Moreover there is a fundamental problem with this consideration of the environment as a precondition because the human right to life is generally agreed to be a non-derogable human right.[153] This means that this human right cannot be subject to any restrictions.[154] So the right to life will take priority over other issues such as economic affairs. However in a situation of conflict as where there is a threat of war which threatens both human life and the environment then the threat to human life will take priority over environmental considerations. This could also affect the concern for the environment in areas such as climate change. Increases in levels of emissions of greenhouse gases could lead to rises in sea level and these changes could result in low-lying islands being inundated with sea water.[155] It is possible that a decision could be taken that it is preferable to save human life on low-lying islands by rescuing the environmental refugees and sacrificing the islands. These considerations would be based on the priority of saving human life instead of taking into account environmental considerations and the need to implement measures to effectively reduce greenhouse gases and to prevent accelerated rises in sea-level. This example shows the significance of the common concern concept because it indicates that action should be taken by the international community to protect the environment and in this case to restrict greenhouse gas emissions.[156] A further means of associating environmental protection with international human rights can be based upon human rights to information and participation in decision-making.[157]
Environmental rights could be based upon current political rights together with the development of the right of the individual to take action to protect the environment.[158] These ideas are supported by international instruments such as the World Charter for Nature and the Rio Declaration amongst others.[159] According to Paragraph 23 of the World Charter for Nature:
All persons, in accordance with their national legislation, shall have the opportunity to participate, individually or with others, in the formation of decisions of direct concern to their environment, and shall have access to means of redress when their environment has suffered damage or degradation.
Even though the Rio Declaration does not set out a human right to a healthy environment, it does set out broad rights to information and participation.[160] According to Principle 10:
Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
This principle is focused on participatory rights in connection with the environment including access to information and judicial or administrative remedies and the right to participate in decisions concerning the environment.
Agenda 21 also indicates that ‘individuals, groups and organisations should have access to information relevant to the environment’.[161] It has been pointed out that the effective implementation of these rights at regional, national and international levels could lead to the most significant advances towards the protection of the environment[162] as well as the avoidance of potential violations of environmental human rights.[163] These human rights to participation and information are significant in the operation of the common concern of humankind concept which, in its social dimension, relies upon the participation of all sectors of society to act together to remove global environmental threats.[164] These rights are based upon current political rights[165] and could avoid being anthropocentric if they also are exercised on behalf of other members of the ecosystem.[166]
There are requirements that the right to information must satisfy in order that it is effective, such as that it is comprehensible and made available promptly, at reasonable cost (if any). This right includes the right to be informed (even if there is no request) of any action likely to have a deleterious effect on the environment.[167] It is also important to have an effective right to information in order to enable the right to participation to be implemented:
The Special Rapporteur stresses that popular participation is closely related to the rights to education and information: without education about the environment and without access to relevant information on issues of concern, popular participation is meaningless.[168]
There may be some State reluctance to be involved with these advances however, because of the likely interference with State sovereignty. As far as environmental issues are concerned, the right to information extends beyond State boundaries to include the right of other States to information and the responsibility of transnational corporations to make this information available. This is particularly important as far as hazardous wastes and toxic substances are concerned.[169] These situations would occur where a person's access to the rights to information and participation may include those who live beyond State boundaries.[170]
However Birnie and Boyle point out that even though other human rights cannot be implemented without healthy and decent environmental conditions, the difficulties with the definition of the right to a healthy environment and its enforcement remain.[171] These authors advocate a procedural approach to the right to a healthy environment to avoid this problem.[172] These rights would be implemented by individuals to enable them to enforce rights to acquire information about acts of environmental degradation, (and this implies the duty of the State to inform) and the right to be able to participate in the making of decisions affecting the environment and to have access to administrative and judicial remedies.[173] These rights also anticipate the need for preventative procedures to protect the environment such as the use of injunctions and public hearings.[174]
Procedural rights can also be used to avoid the problem of anthropocentricity by including protection of environmental interests[175] such as by permitting NGOs to take actions on behalf of the environment. The Ksentini Report advocates a broad approach to standing so that public participation can be encouraged in environmental matters.[176] However procedural rights alone are inadequate to ensure that the environment is protected.[177]
One indication of how the rights to information and participation are considered in an international environmental treaty can be examined in The Climate Change Convention. This Convention does not provide for a right of access to information on climate change but it does indicate that reports provided by States under the provisions of the convention are to be made available to the public at the time that they are presented.[178] However this provision is subject to maintenance of confidentiality of information that is provided by the States in accordance with set criteria.[179] Information availability is subject to national laws protecting confidential information (such as patent law) and as these laws can vary it is important to have some international guidelines to indicate what sort of material is confidential.[180] These provisions do not fully reflect the social dimension of the common concern of humankind which includes the role of participation. Adequate participation can only be achieved if information on global warming is made publicly available. So the procedural rights based upon existing human rights may be useful to enable better access to information and participation in international law.
Another possible development is that the suggested human right to a healthy environment could be accepted by the international community. This likely development can be seen in the Convention on Access to Information, Public Participation in Decision-Making and Access To Justice in Environmental Matters[181] which refers to the right to a healthy environment in the operative section of the Convention. Article 1 states:
In order to contribute to the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters …
This European Convention shows that the human right to a healthy environment has the potential to develop further at international law.
There are correlations which have been drawn between the development of human rights and environmental protection at international law. These correlations are the movement towards globalisation of these areas. In the field of human rights, these issues have become of global interest[182] and the potential for the human rights instruments to be used and developed by future generations has also been pointed out.[183] In international environmental protection, the spatial effect takes into account areas beyond State boundaries and the temporal aspect leads to a perspective which takes future generations into account.[184]
These correlations are also reflected in the operation of the common concern concept.[185] This concept developed with a global focus to apply to the whole of the Earth’s atmosphere and to indicate that all States should take action to prevent damage to the environment from the greenhouse effect.[186] In spite of these correlations, the human rights field is inadequate to protect a human right to a healthy environment because the emphasis on human rights means that significant aspects of environmental protection such as aesthetic protection may not be taken into account.[187] The protection of human rights does not necessarily require the taking into account of the interests of future generations and of the spatial elements which have become fundamental to environmental protection, although this may depend upon the way that the human right is defined.[188]
If defined along the lines of Principle 10 of the Rio Declaration,[189] (note the Draft Covenant has some similar provisions[190]) then a human right to a healthy environment could be effective and the rights could be exercised on behalf of the environment.[191] These rights could be exercised in actions taken by NGOs or through class actions.
Another view is that of environmental protection forming part of, or very closely linked to, the enjoyment of a human right.[192] However this approach has been criticised as it would result in very limited environmental protection because of the need to associate the complaint to a recognised human right.[193] A further difficulty is that the use of human rights procedures to obtain environmental protection could distract the emphasis away from the need to ensure that fundamental human rights are complied with.[194]
The two areas of human rights and environmental protection need to continue to be recognised as two distinct fields. It is important to recognise that environmental concerns could not be totally included into the area of human rights without changing the nature of human rights protection and that some human rights do not relate to environmental protection.[195] The links between the two fields however may be potentially an important area of environmental protection[196] and this can also be seen by the emphasis in the commentary on the common concern of humankind about forming links between these two areas.[197]
In the situation where the right to a healthy environment is not accepted by the international community as a separate human right, the alternative approach is to view environmental protection as forming part of the implementation of existing human rights. The following sections in this article examine the relationship of the common concern of humankind to the human rights to life and to health.[198]
The human need for a healthy environment forms the basis of the right to life which is stated in Article 3 of the Universal Declaration of Human Rights as: ‘Everyone has the right to life, liberty and security of person.’[199]
This human right is also a principal aim of the UN Charter[200] which declares in the preamble that its members shall ‘reaffirm faith in fundamental human rights’ and in setting out the purposes of the UN in Article 1(3). These purposes include ‘promoting and encouraging respect for human rights’. Another important further reference to the rights of peoples is in Article 55(c) which states that:
[T]he United Nations shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
The latter article together with Article 56 (which requires members to pledge their cooperation for the achievement of Article 55) have been described as establishing legal obligations.[201] The General Assembly of the UN adopted the Universal Declaration of Human Rights which can be used to assist in the interpretation of the articles on human rights in the Charter.
The concept of the common concern of humankind has been connected to this human right to life in the Hague Declaration on the Environment[202] which not only recognises that environmental protection is fundamental for the operation of the human right to life but also links both with the recognition that climate change is a common concern of humankind.[203] Paragraph 5 of this declaration, in reference to climate change states:
Because the problem is planet-wide in scope, solutions can only be devised on a global level. Because of the nature of the dangers involved, remedies to be sought involve not only the fundamental duty to preserve the ecosystem, but also the right to live in dignity in a viable global environment, and the consequent duty of the community of nations vis-à-vis present and future generations to do all that can be done to preserve the quality of the atmosphere.[204]
The bridge between environmental protection and the human rights to life and health could be formed by the common concern of humankind concept which epitomises concern with the conservation of the environment.[205] By placing emphasis upon the ‘concern’ for the global environment in connection with human rights this may overcome an anthropocentric interpretation of the implementation of these rights. This could be done by noting that the operation of human rights is dependent upon the maintenance of a healthy environment and that effective environmental protection is likely to require the recognition of natural rights or interests.[206] Ksentini indicates in her report that environmental destruction has direct effects on the satisfaction of many human rights including the right to life, the right to health, and the rights to food, to housing to work, to culture, to education, to peace and to non-discrimination.[207]
The position of the common concern of humankind concept in relationship to human rights is critical if, as is possible, this concept becomes more widely accepted in international law. According to Trindade:
It is conceded that, if and once the concept of common concern of mankind becomes widely and unequivocally accepted, rights and obligations are bound to flow from it, then one is led to consider as its manifestation or even materialization the right to a healthy environment: within the ambit of the droit de l'humanité, the common concern of humankind finds expression in the exercise of the recognised right to a healthy environment, in all its dimensions ... .[208]
The common concern of humankind is linked with the right to life in its broad dimension.[209] This is clear because the reference to humankind brings into consideration the human rights issues.[210] So the right to life requires that humans not be arbitrarily deprived of their lives but also that they are able to achieve a decent quality of life by having the means available for subsistence and an adequate standard of life.[211] This broad view is necessary or the quality of life will deteriorate and ultimately environmental destruction could occur to a stage where the Earth may be no longer able to support life.[212] The right to life can be viewed more broadly because of the interrelationship between the right to life and the right of living.[213] The relationship between the right to life and the health of the environment can be seen in Principle 5 of the Draft Declaration of Principles on Human Rights and the Environment which states:
All persons have the right to freedom from pollution, environmental degradation, and activities that adversely affect the environment, threaten life, health, livelihood, well-being or sustainable development within, across or outside national boundaries.
The Hague Declaration points out the duties of all States to conserve the ecosystem together with the statement of human rights.[214] As the right to life is considered to be enforceable erga omnes even if the States concerned do not have treaty obligations,[215] then certain environmental concerns linked to the human right to life may be enforceable erga omnes as well. This important recognition of duties lessens the focus on human priorities over the environment and increases the emphasis on fiduciary duties of humans to their environment.
There is a close connection between the right to life (which is considered to be a peremptory norm or jus cogens)[216] and the protection of the environment. The argument is that ‘the right to a pure and decent environment is part of, and inseparable from, the right to life. In short a contaminated environment will kill human life.’[217] So on the basis that the human right to life is jus cogens[218] then some features of environmental protection must be also.[219] These would be grave life-threatening instances such as intentional environmental destruction, threatening the lives of indigenous peoples and ecocide which is life-threatening.[220] This argument depends upon the definition of jus cogens as it is apparent that environmental protection is necessary to implement the human right to life. However the concept of the human right to a healthy environment (even if linked to the human right to life) has not formally been accepted by the international community as jus cogens.[221] This position is arguable and would need to be tested in international litigation to determine the exact application of jus cogens but it is logical that life-threatening environmental threats must also fall within the ambit of the right to life.
Another fundamental human right which is linked to the right to a healthy environment is the right to health. Article 25(1) of the Universal Declaration of Human Rights states: ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family ...’
This right is also closely connected to the right to life as it is necessary for the operation of this right to life.[222] The proposal that the right to a healthy environment evolves from the right to life relies on the fact that a decent environment is fundamental to the protection of human life and dignity.[223] It follows from this that the right to a healthy environment is necessary for humans to achieve a reasonable quality of life.[224] This right to a healthy environment would apply even if the environmental destruction was not necessarily the cause a loss of human life because on a broad interpretation, the right to life includes a right to a reasonable quality of life[225] so this right would encompass less severe environmental deterioration.[226] The relationship between these rights has been referred to in international instruments which recognise the need for a healthy environment as a prerequisite to achieving human health.
According to Article 12 of the International Covenant on Economic, Social and Cultural Rights:
1. The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for ...
(b) The improvement of all aspects of environmental and industrial hygiene.[227]
Another example can be found in the San Salvador Additional Protocol (to the American Convention on Human Rights) on Economic Social and Cultural Rights (1989)[228] Article 11:
1 Everyone shall have the right to live in a healthy environment and to have access to basic public services.
2. The States Parties shall promote the protection, preservation and improvement of the environment.
Similarly the Draft Declaration of Principles on Human Rights and the Environment states in Principle 7: ‘All persons have the right to the highest attainable standard of health free from environmental harm.’
Other references in environmental instruments include the Stockholm Declaration[229] and the Rio Declaration which states that human beings ‘are entitled to a healthy and productive life in harmony with nature’.[230] There is an emphasis on human health in Agenda 21 which examines methods of promoting human health as part of the means of fulfilling the aims of sustainable development and environmental protection.[231] The World Summit on Sustainable Development (WSSD) was an international conference held at Johannesburg from 26 August to 4 September 2002. According to the WSSD Report ‘Humans are entitled to a healthy and productive life, in harmony with nature.’[232] The human right to health connects to the concept of sustainable development as it is necessary for humans to be in reasonable health in order that they can carry out the activities necessary to achieve sustainable development.[233]
It is apparent that a healthy environment is necessary, together with improved health services and medication, to achieve the right to health.[234] This link reveals that pollution and contamination of the environment can have damaging consequences to human health.[235] The link between the human rights to health and to a healthy environment can lead to interpretations of these rights which emphasise human priorities such as the preservation of species of animals and plants so long as they have importance for use as medicines.[236] This indicates the limitations of the legal protection of the environment based upon human rights obligations because this interpretation gives priority to human interests over those of the environment.
The main impediment to implementation of the rights in the international arena is the lack of standing for individuals and NGOs. Their chief resort would be to send petitions to the Commission of Human Rights.[237] However States may be able to rely upon the doctrine of erga omnes and the judgement in Barcelona Traction that ‘basic rights of the human person’ are the concern of all States and are erga omnes.[238]
The right to a healthy environment has also been classified as a third generation right founded upon an extension of civil and political rights (known as first generation rights) and economic social and cultural rights (known as second generation rights).[240] The following have also been included as likely third generation rights:
1. The right to development
2. The right to peace.
3. The right to ownership of the common heritage of humankind.[241]
These rights have been described as solidarity rights[242] and it has been argued that these new rights emerged because the first and second generation rights did not give enough consideration to the international sphere of human rights and to the ‘global concerns of mankind’.[243] So the third generation rights would bring human rights up-to-date with the needs of society and they are beginning to receive international acknowledgement.[244]
There continues to be doubt about the usefulness of the classification of the right to a healthy environment as a third generation human right. Pathak suggests that there is no need to distinguish the human right to a healthy environment in this way as in fact it could be classified as a first, second or third generation human right.[245] This is because this environmental right can form part of the human right to life. Secondly, the right to a healthy environment can also be derived from the International Covenant on Economic, Social and Cultural Rights[246] and so may form part of the second generation of rights. Thirdly, as these rights have an international dimension then they may also be located within the third generation of human rights.[247] So the right to a healthy environment can overlap these three areas.
There are areas which environmental law and human rights law have in common. For example they both impose limitations upon the exercise of State sovereignty and they both focus upon the preventative approach for protection of the environment. When considering the common concern of humankind the opinion was expressed ‘that it would be convenient to avoid the doctrine of “generations” of human rights’ at the UNEP Meeting of the Group of Legal Experts to Examine the Concept of the common concern of humankind.[248]
Human rights should not be relied upon as the main method for achieving environmental protection because these procedures are limited and orientated around human concerns. Shelton’s view that the two fields are independent but may share common goals does appear to reflect the international legal position at present.[249] It is possible that as environmental awareness increases a less anthropocentric view of environmental protection may be adopted in the future. In fact it is preferable to aim at integrating the two fields of international law. This means that when decisions are taken on human rights questions, environmental interests (if relevant) are also taken into account. On the occasions that it is necessary to reconcile conflicts on human rights questions there must be some means of making representation available to environmental interests if these interests are also involved in the conflict. Similarly human rights problems cannot be ignored when considering environmental issues.
The concepts of the common concern of humankind and sustainable development assist to provide means of integration through the participatory processes which enable the public to be informed and take part in environmental decision making. An example of integration of environmental concerns within human rights can be seen in the qualifications made to the human right to development.[250] If left without qualification, it would be possible for the human right to development[251] to support continued environmental destruction. However many recent formulations are qualified so that environmental protection is taken into account. An example is the Rio Declaration, Principle 3 states: ‘The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.’[252]
Another potential development is the emergence of a human right to a healthy environment. The Draft Covenant appears to be pointing to the emergence of the human right to a healthy environment. It states that: ‘Parties undertake to achieve progressively the full realisation of the right of everyone to an environment and a level of development adequate for their health, well-being and dignity.’[253]
However there is a lack of guidance about how soon these rights will emerge and how these rights will be implemented and enforced. There are important limitations on these rights, which must be recognised, for example where the rights conflict with the rights of other species, or future generations or the well-being of the total environment.[254] Ksentini has recommended that the approach to human rights and environmental issues should be integrated and coordinated by human rights bodies.[255] She suggests that:
A coordination centre should be set up to deal with the question within the United Nations Centre for Human Rights;
A special rapporteur of the Commission on Human Rights should be appointed with a mandate similar to that generally given to special rapporteurs on thematic questions;
A seminar should be held under the auspices of the Centre for Human Rights to help formulate practical recommendations on the way in which the right to a satisfactory environment could be rationally incorporated into the activities of human rights bodies.[256]
However Ksentini is focussing upon the integration of environmental rights within the human rights framework rather than considering the need to integrate aspects of human rights law with international environmental law. The problem with Ksentini’s approach is that there would be an overlap in the areas covered by the Draft Declaration and Agenda 21 and other international environmental agreements.
This overlap can be seen in the approach in a report to the CSD which reviews the Principles of the Rio Declaration.[257] According to this report:
Moreover, it is impossible to separate the claim to the right to the right to a healthy and balanced environment from the claim to the right to ‘sustainable’ development, which implies a concentration of efforts to combat poverty and underdevelopment.[258]
In the future it would be possible to extend the functions of the CSD so that it could determine whether a particular development is in fact sustainable and make governments accountable if the requirements of sustainability have not been achieved.[259] It has been suggested that the CSD should play a similar role in the conservation of the environment to that of the Human Rights Commission in the protection of human rights.[260] Brown Weiss proposed that a Planetary Rights Commission could be established to enforce planetary rights in a similar way to the enforcement of human rights law.[261] It may be necessary for the CSD to play this type of role and to accept reports from NGOs and perhaps also from individuals which could point out likely breaches of obligations accepted by States in Agenda 21 or in other international environmental agreements.[262]
A human right that includes the right to an ecologically balanced and sustainable environment which permits healthy living for all of its inhabitants will have more than one dimension. The common concern of humankind correlates to this human right as there would be three dimensions which are included in its ambit. The first aspect is the spatial component where States would need to act together to implement this human right and even if this right extends beyond State boundaries. Secondly, the temporal aspect which refers to the right extending to protection of the interests of future generations. Thirdly the social dimension which includes the importance of the rights to information and participation to ensure that this right to a healthy environment can be effective.
However there are difficulties with the development of a separate human right to a healthy environment which have yet to be overcome. The arguments of Boyle and Handl are compelling and given the speedy development of international environmental law to date, the emergence of a separate international human right to a healthy environment is unnecessary, and likely to constitute an impediment to the legal protection of the environment. Overall it may be more important to continue to develop international environmental law relying upon concepts such as common concern of humankind. The further development of common legal principles in all states is necessary to prevent continuing degradation of the global environment. The common concern concept has the advantage of prevailing over three dimensions as well as the function of limiting the exercise of States sovereignty and taking into account the interdependence of States for the resolution of environmental problems.
If the avenue is followed that an international human right to a healthy environment is appropriate, then it is preferable to situate this aspect of human rights law within environmental law[263] rather than vice versa[264] in order to focus upon an integration of this right with existing international environmental law. This can be done by relying upon on the broad interpretation of the common concern of humankind and linking the human right to a healthy environment as an instrument of environmental protection. An international human right to a healthy environment can be justified if alternative provisions in international environmental law are ineffective at adequately protecting the environment. There are problems with international treaties which depend upon the cooperation of States for implementation of effective legislation.[265] If international environmental law is failing to achieve its objectives then a human right to a healthy environment which gains strong international support could draw attention to the need for environmental protection.[266]
Legal rules and principles enabling environmental rights are not a magic formula which will cure the planet of its environmental sickness.[267] There will need to be an awareness in society and effective education about the causes of environmental destruction together with a social conscience that actions on the part of all groups individuals and organisations are necessary in order to take effective preventative action. This is why the concept of the common concern of humankind is useful to enable the issue of the environment to integrate environmental principles when decision makers are making a judgment about international legal disputes. The emphasis should be on the ‘primary importance on manifestation of care for the planet’.[268] When decisions are taken concerning human rights and environmental issues there needs to be an awareness and sensitivity about the impact of the decision on the environment.
[*] BA LLB LLM PhD Lecturer, University of Western Sydney.
[1] The ‘common concern of mankind’ will be referred to as the gender neutral concept of ‘common concern of humankind’
[2] Universal Declaration of Human Rights UNGA Res 217A (III) (1948).
[3] I Brownlie, Principles of Public International Law (5th ed, 1998) 574-575 states ‘The Declaration is not a legal instrument, and some of its provisions for example the reference to the right of asylum, could hardly be said to represent legal rules. On the other hand, some of its provisions either constitute general principles of law or represent elementary considerations of humanity.’
[4] Ibid 570; R Jennings and A Watts (eds), Oppenheim's International Law (9th ed, 1992) 1001-1002.
[5] UN Covenant on Economic, Social, and Cultural Rights 993 UNTS 3 in force 3 January 1976; UN Covenant on Civil and Political Rights (1967) 6 ILM 368 in force 23 March 1976.
[6] P Sands, Principles of International Law (1994) vol 1, 225.
[7] UN Covenant on Economic, Social, and Cultural Rights, above n 4. For example art 12 recognises the right to health including 12(2)(b) ‘the improvement of all aspects of environmental and industrial hygiene’. See F Z Ksentini, ‘Human Rights and The Environment’ (final report prepared by Mrs Fatma Zohra Ksentini, Special Rapporteur 13 September 1994, Economic and Social Council, E/CN.4/Sub.2/ 1994/9/Corr.1, 13) for a list of relevant articles.
[8] Declaration of the United Nations Conference on the Human Environment (Stockholm) UN Doc A/CONF/48/14/REV.1. Principle 1.
[9] V P Nanda, International Environmental Law and Policy (1995) 68.
[10] Some examples are − the constitution of South Africa states that ‘Every person shall have the right to an environment which is not detrimental to his or her health or well-being;’ The constitution of India states: ‘The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife’; The constitution of Turkey states: ‘Every person has the right to live in a healthy, balanced environment.’ Ksentini, above n 7, Annex III ‘Developments in national legislation and practices’; A Kiss and D Shelton, International Environmental Law (1991) 27; note also that evidence of a similarity in the laws of many States can be a source of customary international law. According to D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28 Stanford Journal of International Law 103, 133 ‘In addition, the growing number of national constitutions which include a right to the environment may lead governments to accept the norm on an international level as they recognise the interdependence of all states in regard to environmental protection’. See E Brandl and H Bungert, ‘Constitutional Entrenchment of Environmental Protection: A Comparative Analysis of Experiences Abroad’ (1992) 16 Harvard Environmental Law Review 1.
[11] Experts Group on Environmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development Legal Principles and Recommendations (1986) Principle 1.
[12] 21 ILM (1982) 59.
[13] 28 ILM (1989) 1448 art 29(1)(e).
[14] Declaration of the UN Conference on Environment and Development UN Doc A/CONF.151/26/Rev.
[15] G Handl, ‘Human Rights and Protection of the Environment: A Mildly “Revisionist” View’ in A A C Trindade (ed), Human Rights, Sustainable Development and the Environment (1992) 117, 123; A E Boyle, ‘The Role of International Human Rights Law in the Protection of the Environment’ in A E Boyle and M R Anderson (eds), Human Rights Approaches to Environmental Protection (1996) 43.
[16] Handl, above n 15, 128; S Bilderbeek (ed), Biodiversity and International Law: The Effectiveness of International Law (1992) 90; D Shelton, ‘What Happened in Rio to Human Rights?’ (1992) 3 Yearbook of International Environmental Law 75, 81.
[17] See art 24 of The African Charter of Human and Peoples Rights (1982) 21 ILM 59. The San Salvador Protocol to the 1969 American Convention on Human Rights art 11. The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice In Environmental Matters (1999) 38 ILM 517 art 1.
[18] See Ksentini, above n 7, Annex III for a list. Consider for example Portugal (at 88) ‘The 1982 Constitution provides that “Everyone shall have a right to a healthy and ecologically balanced human environment and the duty to defend it”’. There have also been cases within national jurisdiction on constitutional environmental rights for example Ms Shehla Zia and others v WAPDA in C G Weeramantry, A R B Amerasinghe and P N Bhagwati (eds), Compendium of Summaries of Judicial Decisions in Environment Related Cases (1997) 82.
[19] Sands, above n 6, 223-224; Bilderbeek, above n 16, 90-91; Kiss and Shelton above n 10, 27; T Simpson and V Jackson, ‘Human Rights and the Environment’ (1997) Environmental and Planning Law Journal 268, 270; Ksentini, above n 7, para 241 and Annex III.
[20] Brownlie, above n 3, 5.
[21] Kiss and Shelton, above n 10, 30.
[22] Ibid 380.
[23] A A C Trindade and D J Attard, ‘Report of the Proceedings of the Meeting’ in D J Attard (ed), The Meeting of the Group of Legal Experts to Examine the Concept of the Common Concern of Mankind in Relation to Global Environmental Issues (1990) 24; Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, Geneva, Switzerland, 26-28 September 1995 prepared by the Division for Sustainable Development for the Commission on Sustainable Development Fourth session http://www.un.org/documents/ecosoc/cn17/1996/backgrnd/law.txt (visited at 23/1/04) para 88.
[24] J Barbosa, ‘Conclusions of the Meeting’ in Attard, above n 23, 31-32.
[25] P Alston, ‘A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law’ (1982) 29 Netherlands International Law Review 307.
[26] Some of these commentators are: Kiss and Shelton, above n 10, 21-31; M Thorme, ‘Establishing Environment As a Human Right’ (1991) 19 Denver Journal of International Law and Policy 301-342; W P Gormley, Human Rights and the Environment: The Need for International Co-operation (1976). Other commentators who disagree with the development of this right include Handl, above n 15, Boyle, above n 15.
[27] See for example, R Pathak, ‘The Human Rights System as a Conceptual Framework for Environmental Law’ in Brown Weiss (ed), Environmental Change and International Law: New Challenges and Dimensions (1992) 205-243; A A C Trindade, ‘The Contribution of International Human Rights Law to Environmental Protection, with Special Reference to Global Environmental Change’ in Brown Weiss above n 27, 245-312. For arguments against the development of this right see Handl, above n 15, 122; Boyle above n 15, 63-65; Boyle argues international law does not need a human right to the environment except for areas of public participation.
[28] Ksentini, above n 7, 59.
[29] Ibid 59; This link between the environment and human rights is also studied by Nanda, above n 9, Chapter 4.
[30] V Vukasovic, ‘Protection of the Environment: One of the Key Issues in the Field of Human Rights’ (1990) 59(4) Revista Juridica UPR 889, 892.
[31] P W Birnie and A E Boyle, International Law and the Environment (2002) 257-258; P Taylor, An Ecological Approach to International Law: Responding to the Challenges of Climate Change (1998) 233-234.
[32] Ibid 256; Nanda, above n 9, 70-71.
[33] Pathak, above n 27, 219-223; Ksentini, above n 7, conclusions, para 235-257; Simpson, and Jackson, above n 19, 269-270.
[34] Boyle, above n 15, 63; Handl, above n 15, 119-121.
[35] Ksentini, above n 7.
[36] Draft International Covenant on Environment and Development 2000, (IUCN Commission on Environmental Law and International Council of Environmental Law). Note this is only a draft document and there is no present prospect of it becoming a treaty.
[37] D Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991) 28 Stanford Journal of International Law 103, 104.
[38] Ibid.
[39] Ibid 105.
[40] Pathak, above n 27, 209; see N Gibson, ‘The Right To A Clean Environment’ (1990) 54 Saskatchewan Law Review 5, 11; see also Taylor above n 31, 233.
[41] Shelton, above n 37, 104.
[42] Birnie and Boyle, above n 31, 257.
[43] Birnie and Boyle, above n 31, 197; Kiss and Shelton, above n 10, 22; Boyle, above n 15, 50-51; M R Anderson, ‘Human Rights Approaches to Environmental Protection: An Overview’ in Boyle and Anderson, above n 15, 11 ‘Why is the exercise of defining so difficult? One reason is that precise qualitative and quantitative dimensions of environmental protection are not readily translated into legal terms.’
[44] Thorme, above n 26, 301, 309; A A C Trindade, ‘The Parallel Evolutions of International Human Rights Protection and of Environmental Protection and the Absence of Restrictions upon the Exercise of Recognised Human Rights’ (1991) 13 Revista IIIDH 36, 63; see also similar article Trindade, above n 27, 245-312; see Taylor, above n 31, 222.
[45] Handl, above n 15,122.
[46] Nanda, above n 9, 61.
[47] Thorme, above n 26, 309 refers also to other adjectives to describe the human right to the environment ‘natural, pure, … ecologically-balanced and safe’.
[48] Birnie and Boyle, above n 31, 257.
[49] Nanda, above n 9, 70.
[50] Birnie, and Boyle, above n 31, 256; Bilderbeek, above n 16, 88.
[51] A Kiss, ‘An Introductory Note on a Human Right to Environment’ in Brown, above n 27, 199, 201.
[52] C D Stone, ‘Should Trees Have Standing? Revisited: How Far will Law and Morals Reach? A Pluralist Perspective’ (1985) 59 Southern California Law Review 1, 19-20.
[53] Ksentini, above n 7, 46.
[54] J Lee, ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary Law’ (2000) 25 Columbia Journal of Environmental Law 283, 322.
[55] L E Rodriguez-Rivera, ‘Is the Human Right to Environment Recognised Under International Law? It Depends on the Source’ (2001) 12 Colorado Journal of International Environmental Law and Policy 1, 15.
[56] Handl, above n 15, 131.
[57] Handl, above n 15, 130-131.
[58] Thorme, above n 26, 319 suggests that this right may exist as customary law, Bilderbeek, above n 16, 92 ‘The human right to a clean environment can be viewed as an ethical supposition, appealing to the predicate human right. It could have a legitimizing effect, serving as a guideline. As such, the human right to a clean environment falls in the grey area between a political guideline and a rule of law: “de lege ferenda” or “law in the making”.’
[59] Birnie and Boyle, above n 31, 254-256.
[60] M R Anderson, ‘Human Rights Approaches to Environmental Protection: An Overview’ in Boyle and Anderson, above n 15, 7.
[61] Ibid 8.
[62] Ksentini, above n 7, 62 para 258.
[63] Ksentini, above n 7, 59 para 244, 61 para 253.
[64] Ksentini, above n 7, 61 para 253.
[65] J Cameron and R Mackenzie, ‘Access to Environmental Justice and Procedural Rights in International Institutions’ in Boyle and Anderson above n 15, 133.
[66] Anderson, above n 15, 14.
[67] Anderson, above n 15, 19.
[68] Boyle, above n 15, 53-55.
[69] Boyle, above n 15, 53-55. Anderson, above n 15, 22; see P Pevato, ‘A Right to Environment in International Law: Current Status and Future Outlook’ (1989) 8(3) RECEIL 309, 311.
[70] Boyle, above n 15, 56.
[71] Anderson, above n 15, 22.
[72] Anderson, above n 15, 22.
[73] See above section ‘Definition of the right to a healthy environment’ in this article.
[74] Shelton, above n 37, 136; see Taylor, above n 31, 237-238 on the issue of balancing competing rights.
[75] Agenda 21 (1992) para 8.4; see J C Dernbach, ‘Sustainable Development as A Framework for National Governance’ (1998) 49(1) Case Western Reserve Law Review 1, 50-58.
[76] Rodriguez-Rivera, above n 55, 18.
[77] Draft International Covenant on Environment and Development 2000, (IUCN Commission on Environmental Law and International Council of Environmental Law). Bilderbeek, above n 16, 96; W E Burhenne, and R G Tarasofsky, ‘Codification and Progressive Development of International Law − An Example from the Field of the Environment’ (1998) 28 Environmental Policy and Law 77, 77.
[78] ‘Congress on Public International Law’ (1995) 25 Environmental Policy and Law 161, 163.
[79] Bilderbeek, above n 16, 88.
[80] Art 12(1).
[81] Framework Convention on Climate Change (1992) 31 ILM 851 preamble para 1.
[82] Convention on Biological Diversity 31 ILM (1992) 818 preamble para 3.
[83] L Glowka et al, A Guide to the Convention on Biological Diversity (1994) 28, 3.
[84] A C Trindade and D Attard, ‘Report of the Proceedings of the Meeting Prepared by the Co-rapporteurs’ in Attard, above n 23, 21; J Barbosa, ‘Conclusions of the Meeting’ in Attard, above n 23, 29.
[85] Experts Group on Environmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development Legal Principles and Recommendations (1986) 42, art 2; E Brown Weiss, In Fairness To Future Generations: International Law, Common Patrimony, and Intergenerational Equity (1989) 86.
[86] UN Doc A/Res/43/53 (1988).
[87] Ibid; UN Doc A/Res/44/207 (1989).
[88] For example, the Beijing Ministerial Declaration adopted at the Ministerial Conference 18-19 June 1991, (1991) 21 Environmental Policy and Law 267 states in the preamble para 2 ‘We affirm that environmental protection and sustainable development is a matter of common concern to humankind, which requires effective actions by the international community and provides an opportunity for global co-operation. Against this background and out of a strong concern for the present and future generations ...’ See The Resolution on Protection of Global Climate for Present and Future Generations of Mankind adopted on 6/12/88, UN Doc A/Res/43/53 (1988) para 1,2; The Declaration of the Hague 28 ILM (1989) 1308; the Noordwijk Declaration by the Ministerial Conference on Atmospheric Pollution and Climate Change 6-7 November, 1989, A/C- 2/44/5 para 7.
[89] UN Doc A/Res/43/53 (1988).
[90] Ibid.
[91] UN Doc A/Res/44/207 adopted on 22/11/89, UN Doc A/Res/ 45/212 (1990).
[92] Declaration of the Hague on the Environment (1989) 28 ILM 308.
[93] Noordwijk Declaration by the Ministerial Conference on Atmospheric Pollution and Climate Change 6-7 November, 1989, A/C- 2/44/5. IPCC First Assessment Report Overview 31 August 1990, Ministerial Declaration of the Second World Climate Conference 7 November 1990.
[94] See J M MacDonald, ‘Appreciating the Precautionary Principle as an Ethical Evolution in Ocean Management’ (1995) 26(3) Ocean Development and International Law 255, 270.
[95] P M Dupuy, ‘Soft Law and the International Law of the Environment’ (1991) 12 Michigan Journal of International Law 420, 427.
[96] Framework Convention on Climate Change, above n 81
[97] Convention on Biological Diversity, above n 82.
[98] The preamble does not form part of the operating provisions of the treaty. The preamble can assist to determine the context for the interpretation of a treaty. The 1969 Vienna Convention on the Law of Treaties article 31 states ‘(1)A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. (2) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes ...’; see also Glowka et al, above n 83, 9-10; D Bodansky, ‘The United Nations Framework Convention on Climate Change: A Commentary’ (1993) 18 Yale Journal of International Law 451, 497.
[99] Framework Convention on Climate Change, above n 81. See generally the United Nations Report of the World Summit on Sustainable Development (WSSD) http://daccess.eds.un.org/doc/UNDOC/GEN/NO2/636/93/ (visited at 12/01/04) The Plan of Implementation of WSSD, 38.
[100] Latin American and Caribbean Summit, Declaration of Brasilia on the Environment 31 March 1989, preamble of the North-East Atlantic Fisheries Convention (London) 486 UNTS 158.
[101] Convention on Biological Diversity, above n 82 preamble para 3.
[102] Langkawi Declaration on the Environment 25 October 1989. Declaration of the UNGA Special Session on Development Co-operation 1 May 1990. Draft International Covenant on Environment and Development (IUCN Commission on Environmental Law and International Council of Environmental Law, February 1995). According to art 3 ‘The global environment is a common concern of humanity’.
[103] Sands, above n 6, 408.
[104] Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (1992) 31 ILM 881 preamble para (f) and see para (h).
[106] Similarly ozone depletion can be viewed as a common concern of humankind, see Protocol on Substances that Deplete the Ozone Layer (1987) 26 ILM 1550; J Werksman, ‘Consolidating Governance of the Global Commons: Insights from the Global Environment Facility’ (1995) Yearbook of International Environmental Law 27-63, 41; F Biermann, Saving the Atmosphere: International Law, Developing Countries and Air Pollution (1995) 110 (Principle 20) 91 footnote 375.
[107] Barbosa in Attard, above n 23, 27-32.
[108] Barbosa in Attard, above n 23, 28.
[109] Barbosa in Attard, above n 23, 29.
[110] Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development Geneva, (hereinafter Report of the Expert Group Meeting) Switzerland, 26-28 September 1995; prepared by the Division for Sustainable Development for the CSD Fourth Session gopher.un.org/OO/esc/cn17/1996/backgrnd/law.txt (9/9/98) para 84 .
[111] See Birnie and Boyle, above n 31, 99; Note also the concept of sustainable development emphasises concern for the future - see Brown Weiss, above n 85.
[112] See re Minors Oposa v Secretary of the Department of Environment and Natural Resources (1994) 3 ILM 174. Birnie and Boyle, above n 31, 91. Representation in legal proceedings may be possible but in the case of the ICJ, there would need to be changes to the scope of its jurisdiction. A Malhotra, ‘A Commentary on the Status of Future generations as a Subject of International Law’ in E Agius et al, Future Generations and International Law (1998) 42.
[113] Malhotra, above n 112, 48.
[114] Ibid.
[115] Ibid 49.
[116] A S Timoshenko, ‘International Legal and Institutional Framework for Global Climate Change’ in T Iwama (ed), Policies and Laws on Global Warming: International and Comparative Analysis (1991) 39.
[117] Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development Geneva, Switzerland, 26-28 September 1995; prepared by the Division for Sustainable development for the CSD Fourth Session gopher.un.org/OO/esc/cn17/1996/backgrnd/law.txt (9/9/98) para 84 .
[118] Declaration of the United Nations Conference on the Human Environment (Stockholm) UN Doc A/CONF/48/14/REV 1. See also Declaration of the UN Conference on Environment and Development UN Doc A/CONF.151/26/Rev 1Principle 2.
[119] Framework Convention on Climate Change, above n 81.
[120] Convention on Biological Diversity, above n 82.
[121] Birnie and Boyle, above n 31, 98-99.
[122] Barbosa in Attard, above n 23, 32.
[123] See The Report of the Commission on Global Governance, Our Global Neighbourhood (1995) 29-30.
[124] Trindade,above n 27, 247.
[125] Ibid 251.
[126] Framework Convention on Climate Change, above n 81 preamble.
[127] Birnie and Boyle, above n 31, 97.
[128] Birnie and Boyle, above n 31, 97-98.
[129] Stone, above n 52, 27. (Stone refers to the example of a lake in this article).
[130] Birnie and Boyle, above n 31, 258; Boyle, above n 15, 64; see Taylor, above n 31, 202-203.
[131] Handl, above n 15, 135.
[132] Stone, above n 52, 22-25.
[133] Birnie and Boyle, above n 31,251-2.
[134] Handl, above n 15, 138.
[135] Birnie and Boyle, above n 31, 258.
[136] Handl, above n 15, 142.
[137] Shelton, above n 37, 137.
[138] See Boyle, above n 15, 52.
[139] See Dernbach, above n 75, 50-58.
[140] C Dommen, ‘Claiming Environmental Rights: Some Possibilities Offered by the United Nations’ Human Rights Mechanisms’ (1998) 11 Georgetown International Environmental Law Review 1, 22.
[141] Ibid 31.
[142] Statute of the International Court of Justice art 34 .
[143] See E Rehbinder and D Loperna, ‘Legal Protection of Environmental Rights: The Role and Experience of the International Court of Environmental Arbitration and Conciliation’ (2001) 31 Environmental Policy and Law 282, 284-286.
[144] A Postiglione, ‘A More Efficient International Law on the Environment and setting up an International Court for the Environment within the United Nations’ (1990) Environmental Law Northwestern School of Law of Lewis and Clark College 321.
[145] Rehbinder and Loperna, above n 143, 285
[146] See generally D Craig, ‘Global Sustainable Development: Human Rights, Environmental Rights and Indigenous Peoples’ (paper presented at the Australian Human Rights Centre Seminar Series: Human Rights in a Globalising World, 27th May 2003).
[147] See generally D Shelton, ‘Human Rights and The Environment: Jurisprudence of Human Rights Bodies’ (2002) 32 Environmental Policy and Law 158.
[148] Gibson, above n 40, 16.
[149] Gibson, above n 40, 16.
[150] Stone, above n 52, 22-25.
[151] Gibson, above n 40, 16.
[152] Gibson, above n 40, 17.
[153] See the UN Covenant on Civil and Political Rights art 4(2), the European Convention on Human Rights, art 15(2) the American Convention on Human Rights art 27. Ksentini, above n 7, 44.
[154] Trindade, above n 44, 76.
[155] IPCC Working Group II Summary for Policy Makers The Regional Impacts of Climate Change: An Assessment of Vulnerability http//www.ipcc.ch/pub/reports.htm (visited at 23/1/04) section 6.8.
[156] See Lee, above n 54, 294 on the question of group rights and climate change. Contra Rodriguez-Rivera, above n 55, 11.
[157] Shelton, above n 37, 105.
[158] Shelton, above n 37, 117, Trindade, above n 27, 304 (and identical comments in Trindade, above n 44, 65).
[159] Some international treaties have also included these rights e.g. Convention for the Protection of the Marine Environment of the North-East Atlantic (1993) 32 ILM 1072, art 9 requires that information be made available to natural or legal persons and the 1993 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (Lugano) (1993) 32 ILM 1228 also provides for access to environmental information which is retained by public authorities.
[160] Declaration of the UN Conference on Environment and Development UN Doc A/CONF.151/26/Rev.1.
[161] Agenda 21 above n 76, para 23.2.
[162] Handl, above n 15, 141.
[163] Ksentini, above n 7, 50.
[164] ‘Note from the UNEP Secretariat to the Meeting’ in Attard, above n 23, 37.
[165] See The International Covenant on Civil and Political Rights (1966) GA Res 2200A (XXI) (1967) 6 ILM 368, arts 19 and 25. The UN Declaration of Human Rights (1948) UN.GA. Res 217A (III) of 10 December 1948 art 19, Shelton, above n 37, 117.
[166] Birnie and Boyle, above n 31, 264.
[167] Ksentini, above n 7, 50.
[168] Ksentini, above n 7, 53.
[169] Ksentini, above n 7, 53.
[170] Shelton, above n 35, 120.
[171] Birnie and Boyle, above n 31, 266.
[172] Birnie and Boyle, above n 31, 262.
[173] Birnie and Boyle, above n 31; Shelton, above n 37, 117.
[174] Kiss and Shelton, above n 10, 25.
[175] Redgwell in Boyle and Anderson, above n 15, 86-87.
[176] Ksentini, above n 7, 54 para 222.
[177] See on the issue of procedural rights, Anderson in Boyle and Anderson, above n 15, 10. Anderson states ‘The point is that procedures alone cannot guarantee environmental protection. But if substantive rights are contemplated, then urgent questions of definition and application arise’; see Rodriguez-Rivera, above n 55, 36.
[178] Framework Convention on Climate Change, above n 81, art 12(10).
[179] Framework Convention on Climate Change, above n 81, art 12(9).
[180] T Iwama, ‘Emerging Principles and Rules for the Prevention and Mitigation of Environmental Harm’ in Brown Weiss, above n 27, 119.
[181] The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice In Environmental Matters (1999) 38 ILM 517.
[182] Trindade, above n 27, 247; UN GA Res 32/130 (1977) refers to human rights matters being examined globally.
[183] Trindale, above n 27, 260, 270 the temporal dimension is also important as far as collective rights of groups or communities are concerned.
[184] Trindale, above n 27, 247-271.
[185] ‘Note from the UNEP Secretariat to the Meeting’ in Attard, above n 23, 37.
[186] Trindade, above n 27, 249.
[187] Shelton, above n 37, 133.
[188] Shelton, above n 37, 133.
[189] Declaration of the UN Conference on Environment and Development UN Doc A/CONF.151/26/Rev 1. Ksentini, above n 7, 21 para 72 refers to this principle and the link between information and participation.
[190] Arts 12(3) and (4).
[191] See Boyle, above n 15, 62.
[192] Shelton, above n 37, 105. Shelton describes these interests as ‘inextricably intertwined’.
[193] Shelton, above n 37, 105.
[194] Handl, above n 15, 119.
[195] Shelton, above n 37, 138.
[196] See Ksentini, above n 7.
[197] Barbosa in Attard, above n 23, 31-32.
[198] There are other human rights which could apply to environmental degradation see the list in Dommen, above n 140, 11.
[199] GA Res 217A (III) 10 Dec 1948.
[200] 1 UNTS xvi.
[201] Brownlie, above n 3, 575; Jennings and Watts, above n 4, 989.
[203] Ibid paras 3 and 5.
[204] Ibid para 5.
[205] Barbosa in Attard, above n 23, 31-32.
[206] Stone, Earth and Other Ethics (1987) 73-75; D Hoch, ‘Stone and Douglas Revisited: Deep Ecology and the Case for Constructive Standing’ (1988) 3 Environmental Law and Litigation 131, 139-140 and 153.
[207] Ksentini, above n 7, 60.
[208] Trindade, above n 27, 254.
[209] Trindade, above n 44, 45.
[210] Trinsdale, above n 44, 45.
[211] Trindade, above n 27, 272.
[212] Thorme, above n 26, 320.
[213] See Trindade, above n 27, 272. Note the Draft Declaration of Principles on Human Rights and the Environment Principle 2 .
[215] Ksentini, above n 7, 44.
[216] Ksentini, above n 7, 44, para 172.
[217] W P Gormley, ‘The Legal Obligation of the International Community to Guarantee a Pure and Decent Environment: The Expansion of Human Rights Norms’ (1990) 3 The Georgetown International Environmental Law Review 85, 112.
[218] See Gormley, above n 26, 43.
[219] Gormley, above n 26, 43. Note New Zealand argument in Nuclear Tests Cases (New Zealand v France) [1974] ICJ 253.
[220] Thorme, above n 26, 332.
[221] Bilderbeek, above n 16, 92.
[222] Trindade, above n 27, 281.
[223] Pathak, above n 27, 213.
[224] Pathak, above n 27, 213.
[225] Thorme, above n 26, 320.
[226] Bilderbeek, above n 16, 90.
[227] UN Covenant on Economic, Social, and Cultural Rights 993 UNTS 3 in force 3 January 1976 art 12.
[228] The San Salvador Protocol to the 1969 American Convention on Human Rights.
[229] Declaration of the United Nations Conference on the Human Environment (Stockholm) UN Doc A/CONF/48/14/REV.1. Principle 1.
[230] Declaration of the UN Conference on Environment and Development UN Doc A/CONF.151/26/Rev.1 Principle 1.
[231] Agenda 21 above n 76, 42 para 6.1.
[232] See generally the United Nations Report of the World Summit on Sustainable Development (WSSD) http://daccess.eds.un.org/doc/UNDOC/GEN/NO2/636/93/ (visited 12/01/04) and see the Plan of Implementation of WSSD.
[233] Ksentini, above n 7, 47.
[234] Thorme, above n 26, 321.
[235] Ksentini, above n 7, 46.
[236] Thorme, above n 26, 322.
[237] Brownlie, above n 3, 575.
[238] Barcelona Traction, Light and Power Company Ltd (Belguim v Spain) (Second Phase) [1970] ICJ 3.
[239] Note there is no mention in the Ksentini Report of this issue.
[240] K Vasak, ‘A Thirty Year Struggle: The Sustained Efforts to give force of law to the Universal Declaration of Human Rights’ (1977) UNESCO Courier 29, 32.
[241] In this context the right is viewed as particularly that of the third world to receiving benefits from the common heritage of humankind.
[242] See Alston, above n 25.
[243] E Klein, ‘Human Rights of the Third Generation’ in C Starck (ed), Rights, Institutions and Impact of International Law according to the German Basic Law (1987) 63, 65.
[244] Alston, above n 25, 307.
[245] Pathak, above n 27, 217.
[246] Art 12 (2) provides: ‘The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (b) The improvement of all aspects of environmental and industrial hygiene.’
[247] Pathak, above n 27, 210.
[248] Barbosa in Attard, above n 23, 32.
[249] Shelton, above n 37, 105.
[250] Ksentini, above n 7, 59-61, para 244,252. Ksentini notes the ‘close link’ between the right to a healthy environment and the right to development and that a satisfactory environment also depends upon the resolving of problems associated with development.
[251] S P Marks, ‘Emerging Human Rights: A New Generation for the 1980’s’ (1981) 33 Rutgers Law Review 435, 445 defines the right to development ‘It is the individual right to benefit from a development policy based upon the satisfaction of material and nonmaterial human needs and to participate in the development process, and the collective right of developing countries (and “peoples” not yet having exercised their right to self-determination) to succeed in establishing a new economic order, that is in eliminating the structural obstacles to their development inherent in current international economic relations.’ See also K Mickelson, ‘Seeing the Forest, the Trees and the People: Coming to Terms with Developing Country Perspectives on the Proposed Global Forests Convention’ in Canadian Council on International Law Global Forests and International Environmental Law (1996) 250.
[252] Declaration of the UN Conference on Environment and Development UN Doc A/CONF.151/26/Rev 1. See also Framework Convention on Climate Change, above n 81, preamble para 22.
[253] Draft International Covenant on Environment and Development (IUCN Commission on Environmental Law, February 1995) art 12(1).
[254] Ibid 45.
[255] Ksentini, above n 7, 63 para 260.
[256] Ksentini, above n 7, 63 para 260.
[257] CSD Rio Declaration on Environment and Development: Application and Implementation Report of the Secretary General E/cn.17/1997/8 10 February 1997 gopher://gopher.un.org/
00/esc/cn17/1997/off/97—8.EN (9/9/98).
[258] Ibid para 25.
[259] Birnie and Boyle, above n 31, 85. See generally the United Nations Report of the World Summit on Sustainable Development (WSSD) http://daccess.eds.un.org/doc/UNDOC/GEN/
NO2/636/93/ (visited at 12/01/04) The Plan of Implementation of WSSD 145-146 ‘the Commission needs to be strengthened taking into account the role of relevant institutions and organisations …’.
[260] ‘Sustainable development: the challenge to international law: report of a consultation held at Windsor 27 to 29 April 1993’ (1993) 2(4) Review of European Community and International Environmental Law r5, r7.
[261] Brown Weiss, above n 85, 111.
[262] Brown Weiss, above n 85, 7.
[263] Shelton, above n 35, 134.
[264] E F Adami, ‘Opening Address’ in Attard, above n 23, 10.
[265] J T McClymonds, ‘The Human Right to a healthy Environment: An International Legal Perspective’ (1992) 37 New York Law School Law Review 583, 629.
[266] J W Nickel, ‘The Human Right to a Safe Environment: Philosophical Perspectives on its Scope and Justification’ (1993) 18 Yale Journal of International Law 281, 281.
[267] C Giagnocavo and H Goldstein, ‘Law Reform or World Reform: The Problem of Environmental Rights’ (1990) 35 McGill Law Journal 346.
[268] Ibid 379.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/MqJlICEnvLaw/2004/10.html