Right to Healthy Environment

Right to Healthy Environment

I begin the discussion on the topic with the utterance of former UN High Commissioner for Human Rights Mary Robinson who stated “climate change is the biggest human rights issue in the world” and I completely agree that the safe and decent environment is a precondition to the well being of humanity and the enjoyment of human rights. After the establishment of the UN, with consequent Universal Declaration of Human Rights (UDHR) in 1948, the main focus of the world community was to promote and protect fundamental human rights in the world. However, the vital importance of environmental protection which was the issue at domestic level, became global agenda calling Stockholm Conference in 1972 with the main purpose “to serve as a practical means to encourage and provide guidelines for action by Governments and international organizations designed to protect and improve the human environment”. Stockholm Declaration contained 26 principles which were the foundation of modern international environmental laws and an action plan with 109 recommendations. The 1 principle of the Stockholm declaration proclaims that “man has fundamental right to… adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being” and it was the first formal recognition of links between human rights and environment at international level. The further step, 1992 Rio Conference on the Environment and Development with the adoption of Agenda 21 and the General Assembly Resolution 45/94 seemed to suggest support for the term of a stand-alone right to healthy environment recognizing “that all individuals are entitled to live in an environment adequate for their health and wellbeing”( Bratspies, 2015).

However, the notion “right to a healthy environment” is not explicitly written in any of human rights treaties including UDHR, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Only ICESCR, Article 12(b) mentions “the improvement of all aspects of environmental and industrial hygiene”.

The right to a decent environment is under the protection of some current human rights such as the right to life, health, privacy and property of individuals. The bold steps on the Declaration of Human Rights and Environment by the UN in 1994 failed to be adopted on the political resistance of states.

At global level, 2016 UNHRC in its resolution recognizes “that sustainable development and the protection of the environment contribute to human well-being and to the enjoyment of human rights”. The reference to the human rights in the preamble of the 2015 Paris Agreement and strong connection with SDGs restates the paramount importance of the right to decent environment. At regional level, 1981 African Charter on Human and Peoples’ Rights, Article 24 proclaims right to a general satisfactory environment, 1988 Additional Protocol to the American Human Rights Convention on Economic and Social Rights highlighted the duties of both individuals and state giving more concrete formulation “the right to live in a healthy environment”. The 2004 Revised Arab Charter on Human Rights, Article 38 states the right to a healthy environment. Moreover, S. Atapattu argues that “inclusion of environmental rights over ninety constitutions around the world is a strong evidence for the emergence of general principle of international law”. The recent attempt in Paris on the creation of a new global covenant based on the 2017 A Global Pact for the Environment aiming to establish the universal right to an ecologically sound environment as a human right has initiated. Despite these recognitions at global, regional, and national level the UN Treaty Bodies are reluctant to accept the right to healthy environment be as a human right in international law. UN special rapporteur Knox has worked on promoting the right to healthy environment under the human rights law and in 2018 report he stated that “the time has come for the formal recognition of the right by the General Assembly”.

The protection of environment is mainly found under some existing rights such as right to life, health, privacy and property. Human rights courts and commissions have done a lot in interpreting the interdependence and interconnectedness of the environment and the enjoyment of fundamental human rights. The IACtHR’s Advisory opinion on the Environment and Human Rights for the first time expressly recognized the existence of fundamental right to a healthy environment under the American Convention in the context of right to life and personal integrity in relation to environmental protection. It specified the extraterritorial application in case of environmental harm and duty of the state to prevent such environmental harm as a matter of human rights law. The ACtHPR delivered its decision of Ogiek case on the eviction of the Ogiek people from their ancestral lands in the Mau forest. African Court found the violation of Articles 2, 8, 14, 17(2), 21, 22 and highlighted mutual relationship between Ogiek people and the land on the direct relationship with their human rights, for example, “practice and profession of religion are usually inextricably linked with land and the environment”. In 2010, ACHRP also reached the same reasoning in the earlier Endorois case recognizing the connection between indigenous people and the land on the human rights. However, the approach of European Court of Human Rights to address the environmental protection under the ECHR is criticized by the academy, especially, Pederson (2018) stated that “the aspect’s of Court’s case- law… restricts the application of the otherwise progressive willingness to entertain environmental claims under the Convention”, Reeh (2019) stated that “the European Court of Human Rights (ECtHR) has been more restrictive” referring to the cases López Ostra v. Spain, Dubetska v. Ukraine and Cordella and others v. Italy. Moreover, the doctrine of margin of appreciation gives a wide range of discretion to the contracting states on the environmental decision making and Court relies on its supervisory jurisdiction. The good example for this phenomenon can be the Courts’ decision on Hatton v. UK and Hardy&Maile v. UK where Court found that there is no violation of Convention and the regulatory scheme of the UK in both situations is designed to deal with particular risk and recognized a wide margin of appreciation for state.

Despite these critics, ECtHR has contributed to the development of environment protection concerning human rights referring to the existing international and regional environmental laws. An example, Di Sarno v. Italy case where Court found the violation of Art. 8 in its substantive aspect relying on EU Law (directives on waste management) and the judgments of CJEU dismissing Italian claim on describing situation as a force majeure. Moreover, in Tatar v. Romania, Court stated that when a certain activity poses a danger to human health, despite the lack of scientific certainty state has to adopt effective measures and ruled that the state failed to protect the rights to private lives and homes of applicant and the right to enjoy a healthy environment in the meaning of Article 8. In general, the human rights law is fruitfully dealing with the environmental degradation concerned directly with individual’s life, health, privacy, and property in contrast to international environmental law which limited dealing with breach of rights between states.

The negative effect of environmental issues and climate change on human beings and their rights is not disputable. The advantage of human rights law on promoting environmental protection goals is likely to overcome its limitations. Before continuing, I would like to state limitations of domestic and international environmental law: (1) sovereignty imposes boundaries on the geographic application of these legal regimes, and (2) the states enforcing the legal regimes are often at a disadvantage when confronting powerful transnational corporations whereas the international environmental law seems to compensate these shortages, however, it lacks on the enforcement mechanism itself (Bratspies, 2015). The human rights can be a tool to address these limitations of environment law solving the trans-boundary effect of environmental damages, and providing strong resistance to transnational corporations with its effective enforcement mechanism. Moreover, people whose health and life is endangered by hazardous wastes, pollution of river and air with chemicals and toxic substances have a substantive right to recourse under the human right law. Especially, minorities, ethnic groups, and indigenous people who are restricted to participate in political decision-making processes are likely to find fundamental protection under the human rights law. Quiroz (2010) proposes that by adoption of a human rights-based approach, the environmental model would improve its effectiveness by enhancing the ability to manage risks and improve environmental outcomes. Spieler (2010) acknowledges that International environmental law continues to adopt stricter standards, but lack of recourse to claim environmental violations by individuals in regional and universal systems makes states less accountable for environmental degradation.

There are several limitations of human rights law in dealing with environmental protection. The first, its anthropogenic approach towards the environment and few clear references to environmental issues in the human rights agreements limiting a human rights approach to deal with environmental issues. Second, although human rights jurisprudence covers risk as a sufficient element to bring under human rights tribunals, most of the cases submitted after the occurrence of environmental damage. Third, in most State and human rights tribunals, environmental damage must harm the enjoyment of human rights. ECtHR clearly stated that Article 8(1) encompasses protection against “a harmful effect on a person’s private or family sphere and not simply the general deterioration of the environment” (Kyrtatos v. Greece). The last but not least, there are difficulties in addressing climate change with its several contributors and victims, and the application of precautionary principle on risk assessment is not well suited to human rights tribunals, except in cases where it touches direct harm to human health and life.

In conclusion, I strongly believe that human rights law and environment are interdependent and mutually responsive. Therefore, the application of a human rights-based approach to deal with current environmental issues along with existing environmental law instruments will provide effective and successful outcomes to achieve sustainable development in all aspects.