ROLE OF ENVIRONMENTAL PROTECTION

The relationship between human rights and the environment was studied by the Special Rapporteur on Human Rights and the Environment for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Madame Zhohra Ksentini (1994), from 1991 to 1994.

In 2002 a UN expert group (UNHCHR 2002) concluded:

that respect for human rights is broadly accepted as a precondition for sustainable development, that environmental protection consti­tutes a precondition for the effective enjoyment of human rights pro­tection, and that human rights and the environment are interde­pendent and interrelated. These features are now broadly reflected in national and international practices and developments.

Similarly, Klaus Toepfer (quoted in CEDHA 2002b), Executive Director of the UN Environmental Programme, stated in 2001:

Human rights cannot be secured in a degraded or polluted environ­ment. The fundamental right to life is threatened by soil degrada­tion and deforestation and by exposures to toxic chemicals, hazardous wastes and contaminated drinking water... Environmental conditions clearly help to determine the extent to which people enjoy their basic rights to life, health, adequate food and housing, and traditional livelihood and culture. It is time to recognize that those who pollute or destroy the natural environ­ment are not just committing a crime against nature, but are vio­lating human rights as well.

A growing body of case law and more recent human rights agreements affirm that environmental protection is necessary for some of the most fundamental human rights, such as the rights to life, human health and wellbeing (UNHCHR 2002).

The rights to life, health and wellbeing

Life

The right to life is found in most human rights treaties. It can be argued that any environmental disaster or degradation that results in death breaches human rights. The UN Human Rights Commission recognises that environmental violations such as the transboundary movement of hazardous waste 'constitute a serious threat to the human rights to life, good health and a sound environment for everyone' (quoted in CEDHA 2002b).

The question is, does the right to life require governments to prevent people losing their lives from environmental causes, through ensuring clean air and water and reducing risks from other environmental con­taminants? According to the Human Rights Committee, it does. Governments are expected to take positive measures to reduce infant mortality and increase life expectancy, and consequently are obliged to report on the public health and environmental measures they are under­taking to this end to the Committee (Churchill 1996: 90).

In 1980 the Port Hope Environmental Group complained to the Committee on behalf of present and future generations that the storage of radioactive waste near their homes in Ontario, Canada, posed a threat to their lives and those of future generations and therefore breached the Covenant on Civil and Political Rights. While recognising that this was a legitimate complaint the Committee found that there were other avenues of appeal within the Canadian judicial system, including invoking the Canadian Charter of Human Rights and Freedoms, that the group could use to remedy the situation, and which they had not yet tried (Churchill 1996: 91; UNHRC 1982).

More recently the Federal High Court in Nigeria has ruled that gas­flaring by oil and gas companies violates constitutional rights to life and dignity.

Health and wellbeing

The Universal Declaration of Human Rights includes a person's 'right to a standard of living adequate for the health and well-being of himself and of his family' (Article 25). In addition, the International Covenant on Economic, Social and Cultural Rights includes the following provisions:

The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recog­nizing to this effect the essential importance of international co-oper­ation based on free consent. (Article 11)

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

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... the improvement of all aspects of environmental and indus­trial hygiene. (Article 12)

Although Article 11 is not specific about environmental protection, it is clear that an adequate standard of living will include a minimum envi­ronmental quality. What is more, the environment must be free of pollu­tion and contaminants that might impinge on the right to the highest attainable standard of health in order to comply with Article 12, which does call for environmental improvement. The Commission on Human Rights resolved in 1991 'that all individuals are entitled to live in an envi­ronment adequate for their health and well-being' (quoted in Cameron & MacKenzie 1996: 130).

The Inter-American Commission has found that:

[the] realization of the right to life, and to physical security and integrity is necessarily related to and in some ways dependent upon one's physical environment [and c]onditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being (quoted in CEDHA 2002b).

Right to clean water

Interestingly, while the international covenants include a right to ade­quate food, they do not include a right to clean water. It may be that food was supposed to include water, or that in earlier times it was thought that water, like air, was so fundamental that it went without saying that it was implied in the rights to life, health and wellbeing (Gleick 1999). One might assume that other environmental benefits are likewise implied by other human rights.

The 1977 Mar del Plata Declaration states that 'all peoples, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantities and of a quality equal to their basic needs'. The UN Convention on the Law of the Non- Navigational Uses of International Watercourses (1997) also states that where there are conflicts over water use, priority should be given to 'the requirements of vital human needs', including drinking water and water to produce enough food to prevent starvation (quoted in Gleick 1999).

The right to clean water is explicitly included in the Convention on the Rights of the Child (UNICEF 1989), which recognises the extra vul­nerability of children to environmental factors and, being of more recent origin, is more specific about what is required to achieve the right to health with respect to environmental protection:

1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health..

2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:

(a) To diminish infant and child mortality;.

(b).

(c) To combat disease and malnutrition, including within the frame­work of primary health care, through, inter alia, the application of readily available technology and through the provision of ade­quate nutritious foods and clean drinking-water, taking into con­sideration the dangers and risks of environmental pollution.

Right to a healthy environment

The first regional charter to incorporate environmental requirements was the African Charter on Human and Peoples' Rights (ACHPR 1981), which states that 'All peoples shall have the right to a general satisfac­tory environment favorable to their development' (Article 24). An addi­tion to the American Convention on Human Rights, the 1988 San Salvador Protocol (which came into force in 1999), similarly includes environmental requirements:

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.

Like the Covenant on Social Economic and Cultural Rights, this right to a healthy environment is limited by the resources available to a nation to achieve it. It is a progressive right rather than an immediate one. This means that for the poorer countries in South America, little will actually be done to advance this right (Churchill 1996: 99-100). However, the Awas Tingni people of Nicaragua have been able to use the San Salvador Protocol in a landmark case in the Inter-American Court to stop logging in their territories. The logging had been permitted by the government without consultation with the Awas Tingni, who argued that it violated their rights to cultural integrity, religion, equal protection and participa­tion in government (CEDHA 2002; Taillant 2004: 28).

The rights to privacy, family life, and peaceful enjoyment of property

The European Convention on Human Rights (Council of Europe 1950) has been used as a basis of complaint by those living near airports.

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (Article 8).

Complainants have argued that the noise pollution from airports inter­feres with this right. Some such cases have been settled with compensa­tion. However, in a case involving Heathrow Airport, the European Commission found that the complainants' rights had been breached but that this was justified under clause 2 of the article above because the eco­nomic wellbeing of the nation depended on the airport and the com­plainants could move elsewhere (Churchill 1996: 91-3).

In a contrasting case in 1994, Lopez-Ostra v. Spain, the European Court of Human Rights found that the Spanish authorities had breached the human rights of a resident living near a tannery waste-treatment plant. The resident had suffered serious health problems as a result of the fumes from the plant and the Court ordered that she be compensated because the authorities had failed to find 'a fair balance between the interest of the town's economic well-being and the applicant's effective enjoyment of her right to respect for her home and private and family life' (Churchill 1996: 94).

This right to be free of interference with one's home and property is therefore limited, but the burdens on individuals must not be unreason­able. Similarly, environmental protection measures that interfere with a person's property can be justified in terms of protection of health or the economic wellbeing of the wider community (Churchill 1996: 94-5).

The right to self-determination

The international covenants have a common first article stating:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the prin­ciple of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence... (Article 1)

This article requires some protection of the environment to ensure it is able to support people - not only in terms of subsistence but also in terms of economic, social and cultural development - and that local people are able to choose how to deal with natural resources on their lands.

As the global environment is progressively degraded it is those peoples who subsist most closely to nature - the fishing communities, forest-dwelling peoples and subsistence hunters and farmers - who are most affected. The Inuit people of Alaska, northern Canada and the far east of the Russian Federation, for example, depend on their frozen envi­ronment for their sustenance and hunting culture. But global warming is causing the ice to thin out, which in turn is threatening the animals that live in these areas, including seals, walruses and polar bears. The Inuit can no longer predict the weather patterns and the conditions of their environment. The areas that were safe to cross in earlier times are becoming dangerous, killing some hunters who fall through the ice (Watt-Cloutier 2004: 10):

Inuit believe there is sufficient evidence to demonstrate that the failure to take remedial action by those nations most responsible for the problem does constitute a violation of their human rights - specifically the rights to life, health, culture, means of subsistence, and property.

Because the survival, culture and self-determination of indigenous peoples is often so dependent on their local environment, their rights depend more closely on environmental protection than most other peoples. Many indigenous people have a special relationship to the natural environment which is central to their identity and culture.

The International Labour Organization's Indigenous and Tribal Peoples Convention (ILO 1991) accords indigenous peoples special col­lective rights that are distinct from those applying to minority groups and additional to the universal rights applying to all humans. This con­vention states:

1. Special measures shall be adopted as appropriate for safe­guarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.

2. Such special measures shall not be contrary to the freely- expressed wishes of the peoples concerned... (Article 4)

The right of indigenous peoples to self-determination in terms of social, cultural and political organisation and development, and control over their own land, reinforces the right of all people to self-determination as stated in the international covenants, while recognising their special rela­tionship with and dependence on the land (MacKay 2002: 10-11).

Conflicting rights

Indigenous peoples' rights include the rights to hunt, fish and exploit their local resources, activities which may be at odds with environ­mental goals. In Africa, for example, over 100 000 of the pastoral Maasai people have been forced to leave their homes by governments estab­lishing or extending national parks and conservation areas. The Maasai people have to subsist on ever-decreasing territories, with declining herds. Their land is particularly attractive for conservation because their practices have enabled wildlife to flourish. Generally they have had no say in government decisions about conservation and have received little or no compensation for their loss of land rights and livelihood (Veit & Benson 2004).

'Human rights activists see the challenge as protecting [the] environ­ment for people and not protecting [the] environment from people'. Nevertheless, human rights and environmental protection can conflict. In the short term, the problem of human survival may conflict with 'long-term ecological security', in that the need for food and energy may cause people to disregard the health of the local environment (Dias 2000).

The right to 'continuous improvement of living conditions' could be interpreted as ever-increasing consumerism, which is of course detri­mental to the environment. Similarly, the right to development (DRD 1986) can be seen as conflicting with environmental protection where development is interpreted narrowly as depending on environmentally damaging technologies and activities.

Some argue that environmental degradation is the necessary price paid to achieve economic development and increased prosperity, and that efforts to impose environmental obligations on developing nations are in essence a way of holding up their development. However, as Victor Ricco (2003: 2) of the Argentinian Centre for Human Rights and Environment argues:

What good is economic development if we decrease our quality of life, if we cannot drink clean and safe drinking water, if we cannot breathe clean and safe air, if we do not have clean lands for our fam­ilies and communities to grow and develop?

Potential conflict, however, is not a reason to neglect human rights that may give rise to that conflict. There have always been conflicts between different human rights and so rights have to be balanced against each other. It is for this reason that some individual human rights can be limited by the need for public order, morality and public health. One cri­terion which has been suggested by scholars for balancing rights is to prioritise basic needs and survival, which is another way of giving prece­dence to the right to life. This would place the value of increasing con­sumption below the value of a toxic-free environment, for example (Hancock 2003: 6-7, 16).