ENVIRONMENTAL HUMAN RIGHTS

As we have seen, the environment is protected to some extent by existing human rights, some of which explicitly refer to environmental protection while others imply environmental protection.

Other human rights can be reinterpreted to give them an environmental dimension so that they include a concern for environmental protection. For example, the right to equality can be interpreted as a 'right to equal access to, and protection of, environmental resources' (Anderson 1996: 8).

Jan Hancock (2003: 1-3), in Environmental Human Rights, has argued that there need to be two new universal human rights: '(i) to an environment free from toxic pollution and (ii) to ownership rights of natural resources'. She argues that in capitalist societies, environmental protection is relegated to secondary considerations, subordinate to economic considerations, and that unless there are human rights to a healthy environment, this will continue, at the expense of the most vulnerable people in society.

New human rights have in fact been developed that explicitly recognise the importance of the environment to humans. The Stockholm Declaration (1972) created a right to the environment. Agreed to at a UN Conference on the Human Environment, it stated that:

Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights - even the right to life itself. (Preface)

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. (Principle 1)

In 1984 the OECD agreed that the right to a 'decent' environment was a fundamental human right (Bosselmann 2005). A decade later the Special Rapporteur on Human Rights and the Environment, Madame Ksentini (quoted in Robinson 2002), claimed that the right to 'conservation' and 'prevention' of ecological harm was both an individual and a collective human right.

Her final report (Ksentini 1994) included Draft Principles on Human Rights and the Environment (1994), put together by an expert group, which basically reinterpreted human rights in terms of environmental concerns. These Draft Principles have not yet been adopted.

National constitutions

The right to a healthy environment has nevertheless been incorporated into the constitutions of more than 90 nations since 1992, including nearly all constitutions enacted since that time (Robinson 2002). For example, the Argentinian Constitution gives all residents 'the right to a healthy, balanced environment' (article 31) and the Korean Constitution similarly gives citizens 'the right to a healthy and pleasant environment' (Chapter 11, article 35) (quoted in Dias 2000). The Brazilian Constitution (quoted in Bosselmann 2005) states:

Everyone has a right to an ecologically balanced environment, an asset for common use by the people, and essential to the wholesome quality of life. This imposes upon Public Authorities and the community the obligation to defend and preserve it for present and future generations.

Other nations have interpreted the right to life, health and family life that is already in their constitutions as necessitating a healthy environment. This is particularly the case in South Asia and Latin America (Robinson 2002). In India, for example, the courts have found that the right to life includes the right to live in a clean, pollution-free, healthy environment (Dias 2000). One of the earliest cases where environmental human rights were tested was in Turkey, where the new constitution protects Turkish citizens' rights to a healthy environment. Farmers took the French-based mining company Eurogold to court for polluting their environment, and won (Sachs 1997).

Most recently France has adopted an environmental charter (Charte de l'environnement 2005) as part of its constitution. It was passed at a joint sitting of parliament in 2005 by a vote of 531 to 21.

The charter guarantees every citizen the right to live in a balanced and healthy environment and embodies various environmental principles, including the polluter pays principle, the precautionary principle, the right to information, and an obligation to look after the needs of future generations (Case 2005).

Some argue that the right to a healthy environment cannot be enforced because of the difficulty of coming to an agreed definition of what comprises a 'healthy environment' or a 'satisfactory environment'. There will always be debate about what constitutes such terms. The 'threshold below which the level of environmental quality must fall before a breach of the individual human right will have occurred' is not defined, nor agreed upon at an international level (Korsah-Brown 2002: 81). However, the issue of whether a right is enforceable, or whether a breach of a right can be decided by the courts (its justiciability), should not determine whether a right exists and/or should be recognised (Trindade 1998: 135).

The rights of others

It has been argued that a human rights approach to environmental protection is particularly anthropocentric, that is human-centred. In other words, the environment is only protected to the extent that it serves human needs. Many environmentalists believe that other species should also have rights, particularly the rights to life, existence and wellbeing. They argue that the natural world has an intrinsic worth that does not depend on the value humans place on it. They point out that a purely human rights approach would still allow much environmental degradation to continue (Anderson 1996: 14; Bosselmann 2005).

However, whereas once it was thought that a pollution-free environment was all that was necessary for human wellbeing, modern thought is increasingly recognising that humans are a part of the natural world and that their welfare is dependent on the health of the ecosystems in which they live. For example, the Draft Principles on Human Rights and the Environment (1994) include the protection of flora and fauna: 'All persons have the right to protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems.'

The rights of future generations are also unclear in the arena of human rights.

Such rights would have to be considered as collective rights, but who would be appropriate to 'claim and exercise' the rights of future generations (Merrills 1996: 32-3)? Thus we can see that human rights and even environmental human rights, while necessary, are not sufficient to protect the environment. Other principles, such as environmental sustainability and intergenerational equity, also have to be applied.

The Aarhus Convention (1998) 'is a new kind of environmental agreement' that 'links environmental rights to human rights'. Adopted in 1998 by the United Nations Economic Commission for Europe, the Convention covers access to information, public participation in decision making, and access to justice in environmental matters. It is covered in chapter 6 as part of the discussion on the participation principle, which includes both the right to information and the right to public participation.

ENVIRONMENTAL HUMAN RIGHTS

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