The Human Right to a Healthy Environment
Louise Beckius
University of Amsterdam
International and European Law: Public International Law (LLM)
Supervisor: Dr. Louwrens Kiestra
Abstract
The purpose of this thesis is to conduct a descriptive and evaluative research in order to determine if there is a human right to a healthy environment in international law. Because that right is not mentioned in international human rights treaties, whether or not it exists in international law depends on if it has reached international customary status. The right emerge from within the United Nations system and regional human rights treaties. Soft law instruments, such as the Stockholm Declaration, the Bizkaia Declaration, and General Assembly resolutions recognise a link between environmental protection and human rights. Nevertheless, few of the soft law instruments recognise a human right to a healthy environment in international law. Many regional human rights treaties and national laws stipulate a human right to a healthy environment, which is a strong indication of what UN member states want to protect. While acknowledging this could be evidence of state practice, it must be accompanied by opinion juris. This paper argues that there is no opinio juris supporting the notion that the human right to a healthy environment has reached customary international law. Observers cannot presume that states desire this right as an international norm simply because many endorse it through national laws. The various soft law instruments from the United Nations are very cautious in acknowledging a human right to a healthy environment. This restraint is an outcome of the difficulty of legally defining the right. States add various qualitative terms to the term environment: some soft law instruments and national laws use ‘healthy environment’, or ‘safe, clean or adequate environment’. The right has also been criticized for being too anthropocentric, unnecessary, and challenging to apply. The international community is more open to the recognition of a procedural environmental right than a substantive right. Procedural rights are important for the victim, because they allow a victim to seek redress, access information, and participate in the decision-making process. Only when these rights are coupled with substantive rights, nevertheless, can they reach their full effectiveness. This paper argues that there is no human right to a healthy environment in international law; however, it is not unlikely that the right will reach customary status in the future.
Table of Contents
1 Introduction ... 1
1.2 Research Question ... 3
1.3 Method ... 3
1.4 Delimitation ... 4
2 Emergence of a Human Right to a Healthy Environment ... 4
2.1 United Nations and the Emergence of a Human Right to a Healthy Environment ... 4
2.2 International Human Rights Treaties ... 8
2.3 Regional Human Rights Treaties ... 9
3 Terminological Issues ... 11 4 Conceptual Issues ... 15 4.1 Redundancy ... 15 4.2 Anthropocentricity ... 17 4.3 Procedural Rights ... 18 4.4 Extraterritoriality ... 21
5 A Human Right to a Healthy Environment in Customary International Law ... 24
6 Conclusion ... 28
Abbreviations
ACHR American Convention on Human Rights ACHPR African Charter on Human and Peoples’ Rights
ECHR Convention for the Protection of Human Rights and Fundamental Freedoms
ECtHR European Court of Human Rights GA General Assembly of the United Nations
HRC Human Rights Council
ICJ The International Court of Justice
ICESCR International Covenant on Economic, Social and Cultural Rights ICCPR International Covenant on Civil and Political Rights
OECD Organisation for Economic Co-operation and Development OHCHR Office of the High Commissioner for Human Rights
UN United Nations
UDHR Universal Declaration of Human Rights
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1 Introduction
Environmental protection has received increased attention over the past several years. The Intergovernmental Panel on Climate Change stated that it is extremely likely that human activity is the dominant cause of the warming observed since the mid-twentieth century.1 Forests equivalent to 48 football fields are felled every minute.2 An estimated 1.8 billion people worldwide drink contaminated water.3 These environmental atrocities have made people realize that environmental protection is of paramount importance. The air, water, and forests are essential to satisfy basic human needs. Grasping this has initiated a discussion about the connection between environmental protection and human rights.
Human rights are ‘[…] a universal moral right, something which all men everywhere, at all times ought to have, something of which no one may be deprived without grave affront to justice, something which is owing to every human being simply because he is human.’4 A human right cannot be taken away from a person, and the right should be important to everyone equally, forever.
The international community began discussing the connection between environmental protection and human rights in the 1970s.5 Subsequently, enquiries occurred about the existence of a human right to a healthy environment in international law. The Human Rights Council (‘HRC’) have stated that all human rights depend on a supportive environment.6
1
Intergovernmental Panel on Climate Change, Core Writing Team Synthesis Report IPCC, Pachauri R K and Meyer L A (eds.) ‘Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change’ (2014) IPCC 63
<http://www.ipcc.ch/pdf/assessment-report/ar5/syr/SYR_AR5_FINAL_full.pdf> Accessed 20 January 16.
2 World Wildlife Fund <http://www.worldwildlife.org/threats/deforestation> accessed 10 June 2016. 3 The United Nations Inter-Agency mechanism on all freshwater related issues, including sanitation, ‘Water
Quality’(07 October 2014) <http://www.unwater.org/statistics/statistics-detail/en/c/260727/> accessed 10 June 2016.
4 Maurice Cranston, What are Human Rights? (1973 Bodley Head) 36.
5 UNGA, United Nations Conference on the Human Environment, (15 December 1972) UN Doc A/RES/2994,
Stockholm Declaration on the Human Environment (cit. Stockholm Declaration)
6
HRC ‘Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox’ (30 December 2013) UN Doc A/HRC/25/53, para 19.
2
While there is no doubt that environmental protection and human rights are interlinked, it remains uncertain if environmental protection forms part of the human right doctrine.7
The question of a human right to a healthy environment involves two perspectives. The first perspective interprets the right as a new human right. The second perspective holds that the protection of the environment derives from other human rights.8 The second perspective, according to Boyle, is the ‘greening’ of existing human rights.9 Here, ‘greening’ describes how courts apply current human rights to protect humans from environmental degradation. To do so requires establishing causality between the environmental degradation at issue and a violation of a recognised human right. This paper will use the expression ‘greening’ existing human rights law when discussing the applicability of existing human rights law for environmental protection.
This paper will use the term ‘healthy’ to define the human right to a healthy environment. There is a debate over which qualifying word appropriately defines a human right to a ‘healthy’ environment. This debate will be discussed and analysed more thoroughly in chapter 3.
Before proceeding, a distinction between procedural rights and substantive rights in the context of environmental protection is needed. Procedural rights, such as a right to participate in decision-making processes, a right to information, and a right to seek redress or challenge decisions,10 are paramount for human beings, yet they do not stipulate an independent right to a healthy environment. Environmental procedural rights reflect a mere application of procedural guarantees onto environmental problems.11 Substantive rights are rights established by law and exist independently. If the human right to a healthy environment was a
7
Sumudu Atapattu, ‘The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment Under International Law Doctrine’ (2002) 16 Tulane Environmental Law Journal, 65, 71.
8
Malgosia Fitzmaurice, ‘The Right of the Child to a Clean Environment’ (1999) Southern Illinois University Law Journal, 611-656.
9 Boyle A, ‘Human Right and International Environmental Law: Some Current Problems’ 1 European
University Institute, <http://www.eui.eu/Documents/DepartmentsCentres/Law/ResearchTeaching /WorkingGroups/08-03-HumanRights.pdf> accessed 11 June 2016.; Boyle A, ‘Human Rights and the Environment: Where Next?’ (2012) 23 The European Journal of International Law, 613, 616.; Nksui also uses the expression, Nkusi F, ‘A Right to Healthy Environment: The Nexus between Environmental Protection and Human Rights’ (2015) 5 East African Journal of Science and Technology, 218, 230.
10
Dinah Shelton, ‘Human Rights, Environmental Rights, and the Right to Environment’ (1991-1992) 28 Stanford Journal of International Law, 103, 117.
3
substantive right, a petitioner could exercise this right as a basis for litigation. In either case, victims should know what the right entails in order to seek redress of its possible violation. Therefore, this paper will determine if a substantive human right to a healthy environment exists in international law, and will analyse what this right might entail.
1.2 Research Question
Is there a human right to a healthy environment in international law?
1.3 Method
This paper uses a traditional legal dogmatic method to examine the applicable law concerning a self-standing human right to a healthy environment in international law. The approach involves performing a description as well as a valuation of existing law, and includes historical explanations and clarifications about the structure of the particular right. This paper will describe and systemize legal sources and legal arguments, and it will be conducted from an international law perspective.
The hierarchy of legal sources in this paper are those referred to in article 38 (1) of the International Court of Justice’s (‘ICJ’) Statute.12 According to article 38 (1), the primary sources are: international conventions, international customs, and general principles of law. When the ICJ adjudicates a dispute, it may resort to subsidiary sources like judicial decisions and the teachings of the most highly qualified publicists.
Discussion about the human right to a healthy environment has mostly occurred in various soft law instruments. Soft law is used to confirm or to explain the applicable law, and is considered non-binding instruments. Soft law does not have a narrow definition due to controversy over the term. Shelton defines soft law as ‘[…] normative provisions contained in non-binding texts.’13 Some scholars reject a separation between ‘hard law’, referring to
12 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS, Annexing
Statute of the International Court of Justice, article 38 (1).
13 Dinah Shelton (ed) Commitment and Compliance: The Role of Non-binding Norms in the International Legal
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binding legal texts, and ‘soft law’, indicating non-binding texts. This paper employs this distinction.
1.4 Delimitation
Several questions concerning the human right to a healthy environment in international law are beyond the scope of this paper. This paper will not address whether or not the human rights movement in general should embrace this latest right, or if that pursuit is desirable. Moreover, this paper will neither answer if the creation of a new right will devalue existing human rights, as some scholars claim,14 nor will it determine if the right has obtained regional customary status in certain parts of the world.15
Finally, it will decline to classify in which generation of human rights a human right to a healthy environment would best be placed, because the existence of the right is not dependant on the generation to which it belongs.16
2 Emergence of a Human Right to a Healthy Environment
2.1 United Nations and the Emergence of a Human Right to a Healthy Environment
The Stockholm Declaration17 in 1972 acknowledged for the first time the connection between human rights and the protection of the environment.18 Representatives from 114 different
14
Shelton 1991-1992 n 10, 121.
15 Lee argues that a human right to a healthy environment has reached regional customary status in Latin
America, and also maybe in Africa. To read more about it see John Lee, ‘The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law’ (2000) 25 Columbia Journal of Environmental Law, 283, 314-315.
16
Shelton 1991-1992 n 10, 123. Many human rights lawyers talk about generations of human rights. Civil and political rights, so called first generation rights, are rights where the state has negative obligations; the state needs to refrain from certain actions. With the economic and social rights, so called second generation rights, the state has positive obligations; the state needs to take certain actions to realize these rights. The third generation would be solidarity rights. Third generation rights can only be implemented collectively. These rights affect a group of people not a single individual. To read more about this see, Martin Dixon, International Law, (2013, 7th ed Oxford University Press) 358-359.; Karel Vasak, ‘A 30-year struggle – The sustained efforts to give force of law to the Universal Declaration of Human Rights’ (Nov 1977) The UNESCO Courier, 29. <http://unesdoc.unesco.org/images/0007/000748/074816eo.pdf#48063> accessed 08 June 2016.
17 UNGA, United Nations Conference on the Human Environment, (15 December 1972) UN Doc A/RES/2994,
Stockholm Declaration on the Human Environment (cit. Stockholm Declaration).
18
Stockholm Declaration, principle1.; Dinah Shelton, ‘Human Rights and the Environment: What Specific Environmental Rights have been Recognized? (2006-2007) 35 Denver Journal of International Law and Policy, 129, 129.; Atapattu n 7, 74.; Lee n 15, 308.
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governments participated in the conference that adopted the Declaration.19 The Stockholm Declaration proclaims ‘[… m]an 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.’20 Although the Declaration does not stipulate an independent human right to a healthy environment, it brings the protection of the environment into the area of human rights.21 The
travaux préparatoires for the Stockholm Declaration reveal that the draft was based on the
recognition of a human right to an adequate environment.22 Nonetheless, a literal interpretation of the Stockholm Declaration does not recognise a human right to an adequate environment.
Since the Stockholm Declaration, several declarations and soft law instruments have recognised the connection between environmental protection and human rights. The World Commission on Environment and Development released a report, 15 years after the Stockholm Declaration, named Our Common Future.23 A supplementary annex to the report was the Experts Group on Environmental Law’s proposed Legal Principles for Environmental Protection and Sustainable Development, hereafter referred to as the Expert Group Report. Principle 1 of the annex stipulated that ‘[a]ll human beings have the fundamental right to an environment adequate for their health and well-being.’24 In 1989, the Declaration of The Hague on the Environment25 recognised the right ‘[…] to live in dignity in a viable global environment […]’. Although 24 states signed the Hague Declaration the agreement concerned the quality of the atmosphere and not a general human right to a healthy environment.26
In 1990, the Generally Assembly of the United Nations (‘GA’) recognised, in one of its resolutions, ‘[…] that all individuals are entitled to live in an environment adequate for their
19 Dan Tarlock and John C. Dernback (eds), Environmental Laws and Their Enforcement – Volume I, (Eolss
Publisher, 2009), 313.
20 Stockholm Declaration.
21 Noralee Gibson, ‘The Right to a Clean Environment’ (1990) 54 Saskatchewan Law review, 5, 8. 22
UNGA, ‘Report of the preparatory committee’ (15 March 1972) UN Doc A/Conf.48/PC/17, para 77.
23 Report of the World Commission on Environment and Development: Our Common Future Annexed to UN
Secretary-General, ‘Development and International Co-operation: Environment’ (4 August 1987) UN Doc A/42/427.
24
Report of the World Commission on Environment and Development: Our Common Future Annexed to UN Secretary-General, ‘Development and International Co-operation: Environment’ (4 August 1987) UN Doc A/42/427 (cit. Expert Group Report).
25 Hague Declaration on the Environment, (September 1989) 28 International Legal Materials, 1308. 26
UNGA, RES (22 December 1989) UN Doc A/RES/44/207,; Hague Declaration on the Environment, (September 1989) 28 International Legal Materials, 1308, 1308.; UNGA RES (14 December 1990) UN Doc A/RES/45/94.
6
health and well-being.’ This statement does not support an independent human right to a healthy environment because the resolution continues with ‘[…] a better and healthier environment can help contribute to the full enjoyment of human rights by all.’27 Rather, the proclamation seems to support the phenomena of ‘greening’ existing human rights.
In 1992, the Rio Declaration28 failed to take the opportunity to progress towards a human right to a healthy environment. At least 178 states adopted the Rio Declaration.29Ambiguous with regard to an environmental right, principle 1 stipulates that ‘[h]uman beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’30 Principle 1 acknowledges a link between human rights and environmental protection; however, the formulation takes a step backwards when compared with principle 1 of the Stockholm Declaration.31 As the GA resolution 45/94, principle 1 of the Rio Declaration uses the term ‘entitled’, instead of the term ‘right’.32 Lee disagrees that the Rio Declaration retreated from progress made towards a human right to a healthy environment, arguing that, even if principle 1 does not explicitly recognise such a right, the principle reflects the ideal for it. Lee refers to Black’s Law Dictionary, which stipulates that ‘[o]ne definition of being entitled to something is to be granted a legal right to it.’33
Giorgetta agrees that the Rio Declaration does not retreat from the development of a human right to a healthy environment, by reasoning that the Rio Declaration clearly provides support to the concept of sustainable development, and that the concept itself contains a right to a healthy environment.34 The concept promotes a right to develop sustainably so humans can live in an adequate environment, which meets the interest of present and future generations.35
27 UNGA RES (14 December 1990) UN Doc A/RES/45/94. 28
United Nations Conference on Environment and Development, ’1992 Rio Declaration on Environment and Development’ (14 June 1992) UN Doc A/CONF.151/26 (vol. I) (cit. Rio Declaration).
29 Lynda Collins, ‘The United Nations, human rights and the environment’ in Anna Grear and Louise J Kotzé
(eds), The Research Handbook on Human Rights and the Environment, (Edward Elgar Publishing 2015) 227.
30 Rio Declaration, principle 1.
31 Jorge E. Viñuales (ed) The Rio Declaration on Environment and Development: A Commentary, (2015 Oxford
University Press) 22.
32
Marie Soveroski, ‘Environment Rights versus Environmental Wrongs: Forum over Substance?’ (2007) 3 Review of European Community and International Environmental Law, 261, 264.
33 Lee n 15, 308.
34 Sueli Giorgetta, ‘The Right to a Healthy Environment, Human Rights and Sustainable Development’ (2002) 2
International Environmental Agreements, 171, 178.
35 Pierre-Marie Dupuy and Jorge E. Viñuales, International Environmental Law, (Cambridge University Press
7
While the Declaration recognises the concept of sustainable development, it does not erase the fact that the Declaration fails to mention a human right to a healthy environment explicitly.36 Working Group III of the preparatory committee received many amendment proposals to the Rio Declaration, several of which urged the inclusion of a right to a healthy environment.37 These proposals were not included in the final version. That the drafting committee did not embrace such a right could further prove that the intention of the Rio Declaration was never to recognise a human right to a healthy environment explicitly.
In 1990, the United Nations (‘UN’) appointed Ms Fatma Zohra Ksentini as a special rapporteur on human rights and the environment for the sub-commission on the prevention of discrimination and protection of minorities. The special rapporteur released her final rapport in 1994, and this paper hereafter refers to it as the Ksentini report.38 A suggestion of draft principles on human rights and the environment appended the report. Principle 2 of the appendix stipulates ‘[a]ll 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 right, are universal, interdependent and indivisible.’39
The special rapporteur argued that a human right to a healthy environment already existed in international law.40 However, Atapattu writes that the special rapporteur used a flawed analysis, contending that to recognise the inextricable link between environmental protection and human rights is not the same as recognising an independent human right to a healthy environment.41 The human rights commission did not adopt Ksentini’s draft principles.42
The subject was too politically sensitive, and the human rights commission thought it was premature to acknowledge a human right to a healthy environment.43
In 1999, under the auspices of UN Educational, Science, and Cultural Organization (‘UNESCO’) and the Office of the High Commissioner for Human Rights (‘OHCHR’), the
36 Rio Declaration, principle 1.
37 Chairman’s consolidated draft (24 August 1991) UN Doc A/CONF.151/PC/WG.III/L.8. See also; Shelton
1991-1992 n 10, 133.; Takhmina Karimova and Christophe Golay, ‘Chapter 9, Poverty Eradication’, in Jorge E. Viñuales (ed), The Rio Declaration on Environment and Development: A commentary, (2015 Oxford University Press) 184.
38 UN Economic and Social Council, ‘Final report prepared by Ms. Fatma Zohra Ksentini, Special Rapporteur’
(6 July 1994) UN Doc E/CN.4/Sub.2/1994/9. (cit. Ksentini Report)
39 Ksentini Report.
40 Ksentini Report, para 31. 41 Atapattu n 7, 83.
42
Collins n 29, 231.
43 Earth Rights International, ‘Human Rights and the Environment’ (Jan 1997) 8 <https://www.earthrights.org/
8
Declaration of Bizkaia on the Right to the Environment was issued.44 The Declaration has not received much attention in law journals and books, but it does acknowledge a human right to a healthy environment. The Declaration recalls both the Rio Declaration and the Stockholm Declaration, and notes GA resolution 45/94, and emphasizing ‘[…] the need for a human right to the environment to be recognized in legal instruments of universal scope.’45
The OHCHR’s annual report in 2009 notes that, ‘[w]hile the universal human rights treaties do not refer to a specific right to a safe and healthy environment, the United Nations human rights treaty bodies all recognize the intrinsic link between the environment and the realization of a range of human rights, such as the right to life, to health, to food, to water, and to housing.’46
This statement underscores the interconnection of human rights and the protection of the environment; yet, once again, it does not acknowledge an independent human right to a healthy environment.
In 2012, the HRC established a mandate for an Independent Expert on Human Rights and the Environment. In 2015, the HRC extended that expert’s mandate as a special rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment for a period of three years.47 The special rapporteur observed that some experts—unfortunately the special rapporteur did not mention which ones—want the UN to acknowledge a human right to a healthy environment, while other experts think such a statement would be premature, and the norm is still developing.48
Soft law instruments are not intended to create legal rights and obligations. Although many of these soft law instruments indicate a link between human rights and environmental protection, and the discussion is on-going, the question continues to be asked: is there a human right to a healthy environment in international law?49
2.2 International Human Rights Treaties
44 Declaration of Bizkaia on the Right to the Environment, UN Educational, Social, and Cultural Organization,
(24 September 1999) UN Doc 30 C/INF.11. (Cit. Bizkaia Declaration)
45 Bizkaia Declaration.
46 HRC, ‘Annual Report of the OHCHR’ (15 January 2009) UN Doc A/HRC/10/61, para 18. 47 HRC, ‘Human rights and the environment’ (7 April 2015) UN Doc A/HRC/28/11.
48
UNGA ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’ (28 December 2015) UN Doc A/HRC/31/53, 4.
9
The soft law instruments send an ambiguous signal if there is a self-standing human right to a healthy environment in international law. Some soft law instruments express such a right explicitly, while others imply it in connection with already existing human rights. However, current international human rights treaties lack any provision for such a right. The environment is only mentioned in two of the global human rights treaties.
Article 12 of the International Covenant on Economic, Social and Cultural Rights50 (‘ICESCR’) mentions the environment in connection to health. The article states that signatory parties should improve all aspects of environmental and industrial hygiene in order to fulfil the right to health.51 The Convention of the Rights of the Child52 also remarks on the environment of a certain quality in connection with health in article 24. The Convention, like ICESCR, does not recognise a self-standing human right to a healthy environment, but it is the only international human rights treaty so far that mentions environmental protection.53 Regional human rights treaties have been more progressive in acknowledging a human right to a healthy environment than international human rights treaties have.
2.3 Regional Human RightsTreaties
The human right to a healthy environment has gained more recognition in regional human rights treaties. The African Charter on Human and Peoples’ Rights54 (‘ACHPR’) and the San Salvador Protocol55 to the American Convention on Human Rights (‘ACHR’)56 both include a human right to a healthy environment. While, the Convention for the Protection of Human Rights and Fundamental Freedoms57 (‘ECHR’) does not explicitly mention such a right.
50 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into
force 3 January 1976) 993 UNTS 3.
51 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into
force 3 January 1976) 993 UNTS 3, Article 12.
52
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.
53 Atapattu n 7, 85. 54
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58. 53 States have ratified the Charter.
55 Organization of American States (OAS), Additional Protocol to the American Convention on Human Rights
in the Area of Economic, Social and Cultural Rights (adopted 17 November 1988 entered into force16 November 1999). (cit. Protocol of San Salvador) There are 23 state parties of 35 OAS members that have ratified the American Convention on Human rights. There are 16 states that have ratified the San Salvador protocol.
56 The American Convention on Human Rights: ‘Pact of San José, Costa Rica’ (adopted 22 November 1969,
entered into force 18 July 1978) 1144 UNTS 123.
57 The Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols
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The ECHR does not explicitly mention a human right to a healthy environment. The case law from European Court of Human Rights (‘ECtHR’) contains evidence of the ‘greening’ of existing human rights. In other words, the ECtHR focus on how the rights in the convention can be affected by the environment.58 A violation of the environment has been discussed by the Court in connection with rights, such as the right to life in article 2, the right to private and family life in article 8, the right to property in article 1 of protocol 1, the right to fair trial in article 6, and the freedom of expression in article 10.59 The rights in articles 2 and 8 are invoked most in the cases concerning environmental damages caused by pollution. For an issue to arise under article 8, the environmental factors must directly and seriously affect the right.60 The ECtHR have found that, in the context of dangerous activities, the protection of the right to life may establish positive obligations on states to make sure their legislative and administrative frameworks prevent harm arising from dangerous activities.61 As mentioned, the ECtHR’s case law is a good example of the phenomena of ‘greening’ existing human rights law. Nonetheless, ‘[n]either Article 8 nor any of the other Articles of the Convention are specifically designed to provide general protection of the environment as such […]’.62
Unlike the ECHR, the ACHPR includes a right to a healthy environment. This was the first ratified regional human rights treaty to clearly state such a right.63 Article 24 of ACHPR stipulates that ‘[a]ll peoples shall have the right to a general satisfactory environment favourable to their development.’64
The right is thus framed as a collective right, and not an individual right. The African Commission found a breach of article 24 by Nigeria in the famous Ogoniland Case.65 Nigeria had failed to respect, protect, promote, and realize rights
58 Manual on Human Rights and the Environment (2nd edn Council of Europe Publishing 2012) 16.
59 See cases: L’Erabliere a.s.b.l. v. Belgium, ECHR 2009-II 377.; Budayeva and others v. Russia, ECHR 2008-II
267.; Steel and Morris v. The United Kingdom, ECHR 2005-II 1.; Öneryildiz v. Turkey, ECHR 2004-XII 79.;
Taskin and others v. Turkey, ECHR 2004-X 179.; Kyrtatos v Greece ECHR 2003-VI 257.; Papastavrou and others v. Greece, ECHR 2003-IV 257.
60 Manual on Human Rights and the Environment (2nd edn Council of Europe Publishing 2012) 19. 61
Öneryildiz v. Turkey, ECHR 2004-XII 79.; Manual on Human Rights and the Environment (2nd edn Council of Europe Publishing 2012) 18. Examples of dangerous activities in this context are nuclear tests, the operation of chemical factories with toxic emissions or waste-collection sites.
62 Kyrtatos v Greece ECHR 2003-VI 257, para 52. 63
Soveroski n 32, 264.
64 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986)
(1982) 21 ILM 58, Article 24.
65 The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria,
(2001) African Commission on Human and Peoples' Rights, Case no. 155/96. (Cit. Ogoniland case) The case concerned allegations against the Nigerian National Petroleum Company and the Shell Petroleum Development Corporation for causing environmental degradation in the Ogoni region. The complaint was also filed against
11
under the ACHPR.66 The Commission stipulated that article 24 imposes clear obligations on a state, and a state is required ‘[…] to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources.’67
The strongest provision for an individual right to a healthy environment within a human rights treaty is found in the San Salvador protocol to the ACHR.68 Article 11(1) states: ‘[e]veryone shall have the right to live in a healthy environment and to have access to basic public services’.69
Individuals are not allowed to submit a complaint under article 11 of the protocol. The Inter-American Commission on Human Rights may formulate observations and recommendations concerning the status of the right. 70 The only way an individual can seek redress for environmental degradation is to claim a transgression of existing rights of the ACHR.
Domestic legislation has also been progressive when it comes to stipulating a right to a healthy environment. Over 90 states have included an environmental right in their national laws.71
To sum up, although a human right to a healthy environment is not mentioned in any international human rights treaties, it is declared in the ACHPR, the San Salvador protocol to the ACHR, national laws, and the Bizkaia Declaration. However, the Stockholm Declaration, the Expert group’s report, The Hague Declaration, the GA resolution 45/94, and the Rio Declaration simply acknowledge the connection between environmental protection and human rights.
3 Terminological Issues
the Nigerian Government that was alleged to have placed military in the hands of the companies, and conducted brutal force against the Ogoni people.
66 Ogoniland Case, paras. 45-47. 67 Ogoniland Case, para. 52. 68 Protocol of San Salvador. 69
Protocol of San Salvador, article 11.
70 Protocol of San Salvador, articles 19 (6), and 19(7). 71 Shelton 1991-1992 n 10, 134.
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As mentioned earlier, there is a discussion concerning how to legally define a human right to a healthy environment.
Dupuy and Viñuales argue that the meaning of the term ‘environment’ is unclear in international law.72 They write that the Stockholm Declaration offers some guidance on the definition of the term ‘environment’,73 since principle 2 refers to ‘[t]he natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems […]’.74
The Stockholm Declaration also refers to both man-made and natural environments.75 The ICJ, in its advisory opinion on the Legality of Nuclear Weapons, stated that ‘[…] the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’.76 This statement requires clarification, as both the terms ‘living space’ and ‘quality of life’ are ambiguous.
A definition of ‘environment’ is absent in the Rio Declaration, the Ksentini Report, and the special rapporteur on human rights and environment’s reports.77 The Bizkaia Declaration provides some guidance, for it stipulates that states are responsible for ‘the protection, conservation, restoration, if necessary, and prevention of the deterioration of the biosphere, geosphere, hydrosphere and atmosphere’.78 One conclusion, based on the texts of Bizkaia and Stockholm Declarations, could be that the phrase ‘living space’ enfolds the biosphere, geosphere, hydrosphere, and atmosphere.
That the term ‘environment’ represents the quality of life is less clear. It is important to keep in mind the context in which the statement was created. The advisory opinion made clear that nuclear weapons threaten the environment, specifically the human environment. Judge De M.
72 Dupuy n 35, 24. 73
Dupuy n 35, 24.
74 Stockholm Declaration, principle 2. 75 Stockholm Declaration, para 1. 76
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para 29.
77 Rio Declaration.; Ksentini Report.; UNGA, ‘Report of the Independent Expert on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox’ (24 December 2012) UN Doc A/HRC/22/43.; HRC ‘Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox’ (30 December 2013) UN Doc A/HRC/25/53.; UNGA, ‘Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox’ (3 February 2015) UN Doc A/HRC/28/61; UNGA ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’ (28 December 2015) UN Doc A/HRC/31/53.
13
Bedjaoui, Judge Weeramantry, and Judge Koroma stated that nuclear weapons could destroy the environment, and with this the necessary resources for human survival.79 In this context the environment represent the resources we need for human survival. These clarifications of the term ‘environment’ are interesting, but, according to Dupuy and Viñuales, they still do not offer a legal basis for the term. They suggest a third approach: to seek the definition within a specific normative context.80 This suggestion is acceptable; however, it could be difficult to establish a definition in a normative context if the right to a healthy environment is only found in customary international law.
The term ‘environment’ is a neutral term; therefore, a qualifying term could be useful to add.81 It is not certain if the choice of a qualitative term affects the operation of the right, but Dupuy and Viñuales assert that wording often facilitates legal breakthroughs and wording should be carefully chosen.82 It is a common practices among states to add a qualifying term, and over 90 countries have included an environmental right in their national laws: ‘[a]bout two thirds of the constitutional rights refer to health; alternative formulations include rights to a clean, safe, favourable or wholesome environment’.83
Even, the Stockholm Declaration, the GA resolution 45/94, and the Hague Declaration that recognise the link between environmental protection and human rights use different qualifying terms to define the right.84 The most recent soft law instruments and reports, such as the Ksentini report, Bizkaia Declaration, the OHCHR’s annual report of 2009, and the special rapporteur on human rights and the environment’s reports from 2015, all invoke the qualifying word ‘healthy’.85 Some instruments or reports refer to a ‘safe and healthy environment’ and others to a ‘healthy and ecological balanced environment’, yet they all use
79 Declaration of President Bedjaoui, [1996] ICJ Rep 268, para 20.; Dissenting Opinion of Judge Weeramantry,
[1996] ICJ Rep 429, 447.; Dissenting Opinion of Judge Koroma, [1996] ICJ Rep 556, 570.
80
Dupuy n 35, 26.
81 Shelton 1991-1992 n 10, 134. 82 Dupuy n 35, 327.
83
UNGA, ‘Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox’ (24 December 2012) UN Doc A/HRC/22/43, para. 12.
84 Stockholm Declaration.; UNGA, RES (14 December 1990) UN Doc A/RES/45/94.; Hague Declaration on
Environment, (September 1989) 28 International Legal Materials, 1308.
85 Ksentini Report, principle 2.;Bizkaia Declaration article 1(1).; HRC, ‘Annual Report of the OHCHR’ (15
January 2009) UN Doc A/HRC/10/61 para. 18.;UNGA, ‘Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox’ (3 February 2015) UN Doc A/HRC/28/61, paras. 72,73.;UNGA ‘Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’ (28 December 2015) UN Doc A/HRC/31/53, paras. 8 and 14.
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the term ‘healthy’. Notably, Ksentini refers to a ‘satisfactory environment’ in her report, but uses the terms ‘secure, healthy and ecologically sound environment’ in her draft principles.86
The ACHPR includes a human right to a healthy environment in article 24. 87 The article uses the term ‘satisfactory environment’, but, according to the African Commission in the
Ogoniland case, a satisfactory environment in article 24 is also known as the right to a
healthy environment.88 The San Salvador Protocol to the ACHR also explicitly mentions a human right to a healthy environment as well as using the term ‘healthy’.89 One could conclude fairly that ‘healthy’ is, at least, a preferable qualifying word to add to an international environmental human right; therefore this paper uses that term throughout this paper.
Even if one prefers the term ‘healthy’, its meaning remains a subjective value judgment.90 Because international law has not defined ‘[…] the threshold below which the level of [a healthy environment] must fall before a breach of the individuals human right will have occurred’,91 it requires substantive environmental standards to determine limits on what constitutes a healthy environment. This would require extensive research and a need to adapt new legislations, but this is not impossible according to Shelton.92 The number of treaties and soft law instruments in international environmental law has grown rapidly during the last decades. There are now treaties covering environmental quality standards, product standards, and emission standards.93 Although these standards could assist in defining a healthy environment, not all of these treaties have been ratified by a large number of states.
Both Boyle and Tomasevski consider the difficulty of instituting a universal core meaning of the right that would be applicable in all societies. Environmental conditions vary across societies and are subject to change. Boyle believes that the right would suffer from cultural
86 Ksentini Report. 87
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58, article 24.
88 Ogoniland Case, para. 52. 89 San Salvador Protocol, article 11. 90
Alan Boyle and Michael Anderson (eds) Human Rights Approaches to Environmental Protection, (1996 Oxford University Press) 50.
91 Philippe Sands, Principles of international environmental law 1: Frameworks, standards and implementation,
(1995 Manchester University Press) 222.
92
Shelton 1991-1992 n 10, 136.
93 Philippe Sands and Jacqueline Peel, Principles of International Law (2012, 3rd edn, Cambridge University
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relativism,94 but that critique is not unique: already existing human rights may or may not currently suffer from cultural relativisms. The concept of cultural relativism is a challenge for the universality of human rights. What the north, or western world, consider to be human rights are not necessarily considered so by the rest of the world.95 That the human right to a healthy environment may lack universality is not a reason to discard it in the human rights context. If human lives depend on the environment, it would be a moral concern to at least consider a human right to a healthy environment.
4 Conceptual Issues
4.1 Redundancy
An additional critique against the human right to a healthy environment is that the right is redundant. Boyle discusses this redundancy of the creation of a new human right to a healthy environment.96 When the Stockholm Declaration was drafted, international environmental law was not as developed as it is now. Boyle argues that international environmental law now covers many areas, and has become a very refined system. International environmental law not only shields trans-boundary and global common problems, but the international community currently are more willing to create treaties that protect natural resources and ecosystems within a single state. Boyle wonders what a human right to a healthy environment can accomplish that has not already been achieved in international environmental law.97
According to Boyle, it has been proven that the environment is essential for some of the existing human rights, such as right to life and health; thus, it has not been confirmed that a new human right to an environment is essential for the protection of the environment.98 The question would be if a human right to a healthy environment is, or should be, created to the protection of the environment. If the new right were only created as a protection for the environment per se, this paper would agree with Boyle that it is unclear what such a new right could add to current protections. If one wants to safeguard the environment per se, then
94
Boyle and Anderson n 90, 51.; Katarina Tomasevski, ‘Environmental Rights’ in Asbjorn Eide, Catarina Krause and Allan Rosas (eds), Economic, Social and Cultural Rights (1995 Kluwer Academic Publishers) 261.
95 Anthony Langlois, ‘Normative and Theoretical Foundations of Human Rights’ (2009) Human Rights: Politics
and practice 11, 16.
96
Boyle and Anderson n 90, 53.
97 Boyle and Anderson n 90, 54-56. 98 Boyle and Anderson n 90, 56.
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the human rights context is probably not the most suitable forum. If one frames it as a human right, the focus of the protection would be on humans. This could lead to a risk that environmental quality would be sacrificed for economic development. If one interprets the creation of the new right as a protection for humans to live in a healthy environment, the difference would unburden humans from proving a direct link with a degraded environment and an already protected human right.99 If a human right to a healthy environment exists, it does not mean that the environment would be sacrificed completely. The environment would be protected, up to the threshold at least, of what would or is considered ‘healthy’, and a new human right to an environment could not take away the importance of protecting the environment per se. A human right to a healthy environment would complement international environmental law, not be another alternative.100
Gibson argues that the human rights context is ill-suited because the right is not based on morality, and human rights are the same as moral rights.101 There is reasonable justification to base human rights on human needs. Humans have basic needs for survival, such as water, food, and air. Without these basic needs a human cannot live.102 The right to a healthy environment is not a minor human need. Without the environment, people cannot have a minimally decent life, and it is a moral obligation to allow humans to live a minimally decent life. Therefore, this paper disagrees that the right to a healthy environment cannot be placed in a human rights context.
Another argument for framing the right as a human right, as opposed to international environmental law, would be that human rights trump domestic political decisions. In other words, human rights are rights that states cannot waive through domestic decision.103 If the right to an environment is framed as a human right, a state could not implement a policy that would violate that right. A human rights approach would therefore afford greater protection for individuals and the environment. A human rights approach would also give individuals a tool to challenge their own government.104
99 Dupuy n 35, 302. 100
Luis Rodriguez-Rivera, ‘Is the Human Right to Environment Recognized Under International Law? It Depends on the Source’ (2001) 12 Colorado Journal of International Environmental Law and Policy, 1, 35.
101 Gibson n 21, 11.
102 Massimo Renzo, ‘Human Needs, Human Rights’ in Rowan Cruft, S. Matthew Liao, and Massimo Renzo
(eds), Philosophical Foundations of Human Rights (2015 Oxford University Press) 577.
103 Shelton 1991-1992 n 10, 107. 104 Rodriguez n 100, 5.
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4.2 Anthropocentricity
Another criticism against a human right to a healthy environment is that the right would be too anthropocentric. The environment per se is in need of protection. A human right to an environment would not take into account the needs of other species or habitats.105 Both Gibson and Macdonald argue that an eco-centric approach would benefit all ecosystems and species, even humans.106 Gibson argues that, in the view of deep ecology, it is troublesome to define the right as a human right.107 Deep ecology is a theory developed in 1970s, and holds that humans need to redesign our whole system of life: all beings have the same value, and all beings are responsible to preserve and protect the nature. An anthropocentric view would therefore be wrong.108 If we would define it as a human right we would acknowledge that humans are superior to other species, because any subsequent value of the environment would be measured by human needs.109 Economic development is usually more important than environmental protection, and it could be troublesome if the environment’s value is a calculation of human needs.110
The theory of earth jurisprudence shares the same view as the deep ecology theory. 111 Earth jurisprudence contends that people ought to shift towards an earth-centred law system, where the earth is the primary source of law, and a way of life. Humans are a part of the earth and its system, and people therefore have the duty to take care of the earth.112 Earth jurisprudence suggests that human rights should not trump eco-system or species rights.113 Gibson acknowledges that deep ecology and earth jurisprudence represent only two of many theories: another view would be to see humans as an integral part of nature but still the controlling and dominant species.114 Shelton argues that a human right to a healthy environment could be
105 Karen Macdonald, ‘A right to a healthful environment – humans and habitats: rethinking rights in an age of
climate change’ (2008) 17 European Energy and Environmental Law Review, 213, 217.
106
An eco-centric approach includes the rights of all species. The Human rights doctrine, as the name entails, focuses on humans, and is therefore not according to Macdonald and Gibson a suitable forum. Macdonald n 105, 216.; Gibson n 21, 14.
107
Gibson n 21, 13.
108 Alan Drengson, ‘Some thought on the Deep Ecology movement’ Foundation for Deep Ecology <http://
www.deepecology.org/deepecology.htm> accessed 08 June 2016.
109 Gibson n 21, 14. 110
Shelton 1991-1992 n 10, 109.
111 Judith Koons, ‘What is Earth Jurisprudence?: Key Principles to Transform Law for the Health of the Planet’
(2009) 18 Penn St Law Review 47, 1.
112 The Gaia Foundation, ‘Earth Jurisprudence – Earth Law <http://www.gaiafoundation.org/earth-centred-law>
accessed 08 June 2016.
113 Macdonald n 105, 217. 114 Gibson n 21, 15.
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defined in a way that balances the interests of humans and ecosystems.115 This approach promotes the idea that even if we protect the environment solely to fulfil human needs, we are an integral part of the environment and we have a duty to protect it.116
Atapattu maintains that ‘[a]t no point should the anthropocentric approach override or replace the eco-centric approach to environmental protection.’117 Atapattu is of the view that a human right to a healthy environment would complement the eco-centric approach.118 The human rights machinery has a more developed system, especially due to the human rights courts. Victims of environmental degradation seek redress in human rights courts due to the lack of enforcement in international environmental law.119 Even if the human right to a healthy environment is anthropocentric it could be a useful supplement to the eco-centric approach, because human rights have a clear right holder, compared to international environmental rights.120 However, if a human right to a healthy environment is framed as a human right, humans will typically be prioritized.
4.3 Procedural Rights
Procedural environmental rights have gained recognition in several soft law instruments, international agreements, and doctrines.121 The Rio Declaration, in principle 10, supports and stipulates procedural rights.122 These are: a right to participate in the decision-making process, a right to information, and a right to seek redress or challenge decisions.123 Procedural rights do not in themselves recognise an independent human right to a healthy environment. The new aspect is that procedural rights have been extended to cover environmental issues. However, transparency and accountability are desirable in a democratic
115 Dinah Shelton, ‘Human Rights and the Environment: What Specific Environmental Rights have been
Recognized? (2006-2007) 35 Denver Journal of International Law and Policy, 129, 131.
116 Shelton 1991-1992 n 10, 110. 117 Atapattu n 7, 68. 118 Atapattu n 7, 68. 119 Atapattu n 7, 70. 120 Dupuy n 35, 299.
121 For example: Commission for Environmental Copperation, ‘Guidelines for Submissions on Enforcement
Matters under Articles 14 and 15 of the North American Agreement on Environmental Cooperation’ (February 2013) <http://www3.cec.org/islandora/en/item/10838-guidelines-submissions-enforcement-matters-underarticl es-14-and-15-north-en.pdf> accessed 11 June 2016.; Rio Declaration.; UNGA, ‘World Charter for Nature’ (28 October 1982) UN Doc A/RES/37/7, principle 23.; Boyle and Anderson n 90, 10.; Giorgetta n 34, 187.; Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79, article 14.; United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) 1771 UNTS 107, article 6.
122 Rio Declaration, principle 10. 123 Shelton 1991-1992 n 10, 117.
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society, and procedural rights push governments to: operate with openness, not neglect their obligations, and be accountable for their actions.124 It would be unfair in a society that claims to value the human being if one cannot seek redress.
Boyle and Harding have suggested focusing on the procedural aspects of environmental rights rather than on the substantive right to a healthy environment, because it would be more successful.125 Procedural rights would not face the same problem concerning anthropo-centricity, for example.126 Shelton maintains that only having procedural rights to protect the environment would be insufficient. She argues that procedural rights need to be linked with substantive environmental rights, because a ‘[…] fully informed society [could] decide to sacrifice environmental quality in order to advance economic or cultural considerations.’127
There is nothing that says that if we have a substantive human right to a healthy environment we would not sacrifice environmental quality. The right lacks a precise definition, and it could be acceptable to sacrifice environmental quality if allowed under the right in question, as long as the environment continues to be considered healthy for human beings. Consequently, it would be sufficient to only have procedural rights, even if this is not ideal.
Due to the difficulty of defining a substantive right, Boyle and Anderson argue that effective procedural rights are necessary and will lead to increased protection of the environment.128 Soveroski contends that the substantive right would be meaningless without having procedural rights, and Cullet claims that procedural rights would be meaningless without a substantive right.129 To reach the full effectiveness of a human right to a healthy environment, this paper argues that the substantive right should accompany the procedural rights. However, if the international community do not accept a substantive human right to a healthy environment, it is essential that victims have access to information in order to prove the causality between environmental degradation and a violation of an already existing human right.
124
Boyle and Anderson n 90, 60.; Giorgetta n 34, 186.
125 Boyle and Anderson n 90, 10. 126 Boyle and Anderson n 90, 62. 127 Shelton 1991-1992 n 10, 120. 128
Boyle and Anderson n 90, 9.
129 Soveroski n 32, 261.;Philippe Cullet, ‘definition of an Environmental Right in a Human Rights Context’
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An interesting convention that recognises procedural rights is the Aarhus Convention. 130 The Aarhus Convention, adopted at the Fourth Ministerial Conference as part of the ‘Environment for Europe’ process, details the rights originated from principle 10 of the Rio Declaration. The Aarhus Convention, even if it is regional in scope, has greatly influenced international environmental law and human rights law. The Convention is open to accession by other states situated outside Europe, and has extended its geographical scope.131 At present, 47 states have adopted the Convention.132 The Convention recalls principle 1 of the Stockholm Declaration and principle 10 of the Rio Declaration. The Aarhus Convention is not the only human rights treaty expressing procedural rights since procedural rights are also expressed under other human right treaties,133 but the uniqueness of the Aarhus Convention is that it extends these procedural rights to environmental issues.134
Article 1 explicitly recognises ‘the right of every person […] to live in an environment adequate to his or her health and well-being […]’. Article 1 also guarantees the right to information, participation in decision-making, and right to seek justice in environmental matters. According to Pallemaerts, the Convention shows that procedural rights are not an end in themselves, but are important because they help empower a human right to a healthy environment.135 The rationale is that even if the Aarhus Convention was supposed to only recognise procedural rights, it was the first time the environment was closely linked to human
130
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447. (cit. Aarhus Convention)
131 Dupuy n 35, 316. 132
United Nations Economic Commission for Europe, ‘Parties to the Aarhus Convention’ <http://www.unece.org/env/pp/aarhus/map.html> accessed 11 June 2016.
133 The right to information can be found in article 19 in the Universal Declaration on Human rights (‘UDHR’),
article 19(2) in the International Covenant on Civil and Political Rights (‘ICCPR’), article 13 ACHR, article 9 ACHPR, and article 10 ECHR. Article 21 UDHR, article 13 ACHPR, article 25 ICCPR, and article 23 ACHR expresses the right to participate in the decision-making process. The right to a remedy for a violation of a human’s rights can be found in article 8 UDHR, article 2(3) ICCPR, article 25 ACHR, and articles 6 and 13 ECHR. UNGA, Universal Declaration on Human Rights (10 December 1948) UN Doc A/RES/217 A (III).; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58.; The American Convention on Human Rights: ‘Pact of San José, Costa Rica’ (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123.; The Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.
134 Atapattu n 7, 95.
135 Marc Pallemaerts, ‘Proceduralizing environmental rights: the Aarhus Convention on Access to Information,
Public Participation in Decision-Making and Access to Justice in Environmental Matters in a Human Rights Context’ in Human Rights and the Environment Proceedings of a Geneva Environment Network roundtable (2004) United Nations Environment Programme for the Geneva Environment Network, 14, 18.
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rights. 136 The Convention confirms that human rights and the environment are interlinked, and the Convention explicitly recognises for the first time, in Europe, a human right to a healthy environment. 137 Another interesting aspect is that the Convention does not provide an exact definition of the human right to a healthy environment.138 This could evidence the lack of need for a precise definition of a human right to a healthy environment, or it could evidence that the international community cannot agree upon a definition.
To sum up, procedural rights in themselves do not recognise a substantive human right to a healthy environment. However, substantive rights reach their full effectiveness if procedural rights accompany them. Humans should be able to access information and seek redress if their substantive right has been violated. The Aarhus Convention recognises procedural rights, but is also an important treaty that confirms a conceptual link between substantive and procedural rights.139 The intention of the Aarhus Convention was to draft a convention with purely procedural rights; nevertheless, the convention is an indication that a human right to a healthy environment could exist in international law.140
4.4 Extraterritoriality
Another issue for a human right to a healthy environment is the geographic dimension. It will be a challenge for the human rights context to adjust in order to protect populations from having their right violated by states other than their own.141 States enjoy territorial sovereignty and the natural resources within it in international law.142 States have a responsibility to protect the people within their territories, and not to cause harm to other states. Commonly, the issue is that the state in which the victim resides has not caused the environmental degradation, and, therefore, has not violated the victim’s right, transboundary pollution, for example.
136 Pallemaerts n 135, 17. 137
Pallemaerts n 135, 18.
138 Giorgetta n 34, 187.
139 Aarhus Convention, article 1. 140 Pallemaerts n 135, 17. 141
Fred Nkusi, ‘A Right to Healthy Environment: The Nexus between Environmental Protection and Human Rights’ (2015) 5 East African Journal of Science and Technology, 218, 232.
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Extraterritorial application of human rights is a vast subject, which cannot be covered entirely in this paper, but contains some important elements worth describing. The extraterritorial application of human rights depends on specific treaties. Some human rights treaties have application clauses that determine their application.143 Whereas the International Covenant on Civil and Political Rights144 stipulates in article 2(1), for example, that ‘[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction […]’145
, the ICESCR does not have an application clause. It would be up be to treaty interpretation if extraterritorial application could be used in cases where the state causing the environmental degradation is not the state in which the victim resides.
Boyle suggests a ‘common legal space’ which is used in ECHR and ACHR. This would mean that states that are party to human rights treaties have a duty to respect human rights within another participant state.146 It is a good suggestion, but the human right to a healthy environment is not mentioned in any international human rights treaties. To use ‘common legal space’ would not be sufficient if the right is an international customary norm. The only way this suggestion would work is if the international community draft a new treaty that includes a human right to a healthy environment and add a provision about ‘a common legal space’.
The extraterritorial application of international human rights that have reached customary status is also unclear in international law. Lubell argues that there is no territorial limit on customary international human rights, while Milanovic believes it is unlikely that customary international human rights have a more extensive obligation than treaty law.147 Shelton
143 Marko Milanovic, Lecture about the Extraterritorial Application of Human Rights Treaties, video at UN
Audiovisual Library of International Law, <http://legal.un.org/avl/ls/Milanovic_HR.html#> Accessed 16 May 2016.
144 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171.
145 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171, article 2(2). Emphasis added.
146 Alan Boyle, ‘Human Right and International Environmental Law: Some Current Problems’ European
University Institute, 8 <http://www.eui.eu/Documents/DepartmentsCentres/Law/ResearchTeaching/Work ingGroups/08-03-HumanRights.pdf> accessed 11 June 2016.
147
Noam Lubell, Extraterritorial Use of Force against Non-State Actors (2010 Oxford University Press) 232-235; Marko Milanovic, Extraterritorial Application of Human Rights Treaties – Law, Principles, and Policy (2011 Oxford University Press) 3.
