SECTION 5 UNDERSTANDING SPECIFIC ESC RIGHTS
The Right to A Healthy Environment
The Purpose of Module 15
The purpose of this module is to provide an overview of the right to a healthy environment.
In the past few decades awareness of the damaging effects of environmental pollution on human beings and their quality of life has increased dramatically. This awareness has followed upon very substantial degradation of the worlds environment-land, water and air-over the past two centuries. While human activity has always taken a toll on the natural world, the negative impact of this activity has increased exponentially during this period of time. There appears to be general agreement on the impact of a few specific changes. 
One has been population growth-initially in Europe. As the population there grew from an estimated 80 million people in 1500 to 266 million by the end of the nineteenth century, forests were cut down, water became polluted and the fertility of the land was drained from overuse. In part as a result of the crowded conditions, populations began to leave Europe for other continents, including the Americas, Africa and parts of Asia. In recent decades the populations in these regions have expanded exponentially.
With European migration and colonization went a mind-set that encouraged the exploitation of the earth and its natural resources. This has had a vast impact on the state of the environment over the last 200 years. During the past century, socialist societies took a similarly exploitative attitude towards the earth, with the result that socialist countries also suffered serious environmental degradation.
In a related development, science and scientific research connected to political and economic power have not only provided enormous benefits to humankind, but have also seriously disrupted the environment. The most awesome manifestation of this has been, of course, the atomic bomb.
Not all cultures, of course, have taken these same approaches, and some have sought to resist the changes (including environmental damage) wrought by capitalism and science. Over the centuries, some Europeans also protested the negative environmental damages happening in their own countries as a result of the industrial revolution and related changes. In the aftermath of World War II, concern about the accumulating negative impacts of all these developments on the environment heightened substantially. Environmental damage that had occurred and continues to occur in countries around the world was increasingly documented and discussed.
Development of the Right to a Healthy Environment
Although there were attempts to develop international environmental law in the nineteenth century (focused on the conservation of wildlife), it was not until the Stockholm Conference in 1972 that the right to a healthy environment was explicitly recognized in an international environmental law document. The conference adopted what is known as the Stockholm Declaration, consisting of three non-binding instruments: a resolution on institutional and financial arrangements; a declaration containing 26 principles; and an action plan containing 109 recommendations.
The Stockholm Conference is considered an important starting point in developing environmental law at the global as well as national level. Principle 1 of the Stockholm Declaration linked environmental protection to human rights norms, stating,
The Stockholm Conference influenced legal and institutional development for the next two decades. One of its influences was the creation of the United Nations Environment Programme (UNEP). It also led to the development of the 1982 United Nations Conventions on the Law of the Sea (UNCLOS), a comprehensive framework for the establishment of global rules on the protection of the marine environment and marine living resources. The Stockholm Conference was also followed by important regional developments, including the adoption of new rules and regulations by the European Community, and the creation of an Environment Committee at the Organization for Economic Cooperation and Development (OECD).
In 1983, the UN General Assembly created the World Commission on Environment and Development (WCED), chaired by Norwegian Prime Minister Gro Harlem Brundtland. The WCED was established as an independent body linked to, but outside the control of, both governments and the UN system. In December 1987, the WCED published the Brundtland Report, which, among other things, created a new terminology-sustainable development-and placed economic development activities within the context of environmental limitations. The Brundtland Report also called for a second UN conference to address the question of environment and development.
Twenty years after Stockholm, in June 1992, the UN Conference on Environment and Development (UNCED) was held in Rio de Janeiro, Brazil. The purpose of the conference was to elaborate strategies and measures to halt and reverse the effects of environmental degradation and to strengthen national and international efforts to promote sustainable and environmentally sound development in all countries. The Rio Conference had unprecedented participation from thousands of non-governmental organizations from around the world.
UNCED adopted three nonbinding instruments, one of which was the Rio Declaration, which identifies 27 principles. Principle 1 of the Rio Declaration states that human beings are "at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. While it fell short of recognizing a healthy environment as a basic human right, Principle 1 points in that direction. The Rio Conference also adopted what is known as "Agenda 21-a far-reaching program for sustainable development that constitutes the centerpiece of international cooperation within the United Nations system.
Current Global Situation
The years that have elapsed since the Rio Conference have been characterized by globalization. Although economic growth-reinforced by globalization-has allowed some countries to reduce the proportion of people living in poverty, for others poverty and marginalization have actually increased. Too many countries have seen economic conditions worsen and public services deteriorate. Income inequality has also increased among and within countries, and unemployment has worsened.
During the same period, as noted in the Global Environmental Outlook of UNEP (1997), the state of the global environment has continued to deteriorate. Toxic emissions and greenhouse gases are increasing, the rate of deforestation has not been reduced, and the loss of biodiversity continues.
The Right to a Healthy Environment as a Human Right
The environment is mentioned directly in the ICESCR in article 12(2) on the right to health:
As mentioned previously, the right to a healthy environment was first explicitly recognized in the Stockholm and Rio declarations as nonbinding principles. Those declarations were not intended to create legal rights and obligations. However, they did contribute to the development of international and national law.
In relation to environmental obligations, certain treaties of potentially global application include:
UNEPs 1989 Register of Environmental Agreements lists a total of 139 treaties. In addition, there exist treaties that do not primarily address environmental issues, but deal with environmental obligations. These include agreements relating to trade and other international economic matters (such as GATT), regional free trade agreements, the EEC Treaty, the agreements establishing the World Bank and the regional multilateral development banks, and the multilateral development assistance agreements such as the 1990 Fourth Lomé Agreement. Additionally, there exist bilateral environmental agreements, which have contributed significantly to the development of international environmental law.
The Rio Declaration, although it is not a treaty, stipulates certain state obligations. The Commission on Sustainable Development (CSD) has been mandated by the UN General Assembly to be a central forum for reviewing progress and for urging further implementation of the Rio documents.
National constitutions and laws
Many national constitutions and laws recognize the right to a healthy environment derived from the obligation of states to adopt the principles reflected in the Stockholm and Rio declarations. Some domestic courts have also referred to principles enshrined in these Declarations. Obviously, the legal status of a healthy environment as a human right varies among different systems. Many countries, such as South Africa, have developed constitutional provisions that guarantee the right to a healthy environment. South Africas Constitution stipulates as follows:
South Koreas Constitution contains provisions recognizing that "all citizens have the right to a healthy and pleasant environment. Other countries that have devoted constitutional provisions to the right to a healthy environment include Ecuador, Hungary, Peru, Portugal and the Philippines.
Other countries, such as Mexico and Indonesia, recognize the right to a healthy environment in national legislation. The first objective of the Mexico General Act for the Protection of the Environment and Ecological Equilibrium, which was amended in 1996, is: "To guarantee the right of every person to live in an adequate environment, for the sake of his or her development, health and well being. Article 15/XII reiterates that right and mandates the competent authorities to take measures to guarantee its exercise. However, those provisions mean little because they cannot be enforced in the courts, which regard them as insufficient to provide legal standing to anyone who cannot give evidence of personal and direct environmental harm.5
The Indonesia Environmental Management Act (EMA) also recognizes the right to a healthy environment. Article 5(1) stipulates "every person has the same right to an environment which is good and healthy. This provision is accompanied by provisions that guarantee "the right to environmental information (public access to information) and "the right to participate in the environmental decision making process. To help affected people and NGOs fight for the right to a healthy environment, the EMA also guarantees various environmental procedural rights, such as the right of NGOs to bring lawsuits as class/representative actions.
As a result of pressure from pro-democracy and pro-reform activists in Indonesia, the Special Session of the Peoples National Assembly that was held in October 1998 (after Soehartos resignation) promulgated the National Human Rights Charter, which also includes "every persons right to a good and healthy environment.
Indivisibility and Interdependence
There is, of course, an integral link between the right to a healthy environment and other human rights. Indeed, it may often be easier to address environmental concerns through other human rights than through the as yet not well-defined right to a healthy environment. The deterioration of the environment affects the right to life, health, work and education, among other rights. Pollution of lakes and waters in a large number of countries has seriously affected the ability of fisherfolk to earn a decent living from their traditional work. Health problems caused by air and water pollution resulting from effluents of nearby (or distant) factories have been well documented. Poisoning from lead-in paint, gasoline and other sources-has been shown to affect childrens ability to learn. Examples abound.
Moreover, environmental degradation caused by economic activities is often accompanied by and related to violations of civil and political rights, including lack of public access to information, citizen participation, freedom of speech and association. In many cases where industrial development and resource extraction (e.g., mining or oil development) impact communities, those who question the negative effects of the development activity are subject to harassment or suppression by government or project authorities. The Brundtland Report, mentioned above, itself recommended that governments recognize
Environmental degradation has also in various contexts been related to issues of ethnic identity, with the result that concerns about equality and nondiscrimination are related in a close and complex manner to concerns about environmental rights.
Implementation and Enforcement Mechanisms
The recognition of the right to a healthy environment in the constitution, legislation and other national policy arrangements will not have a real effect if it is not accompanied by the availability of means to implement the right and adequate mechanisms of enforcement.
In the international context, the Rio Declaration with its Plan of Action ("Agenda 21) contains measures to be taken for implementation of the Rio principles and the other major treaties produced in Rio. The measures are (1) provision of financial resources and mechanisms; (2) transfer of environmentally sound technologies; (3) support for capacity-building; (4) education and awareness; (5) development of enforceable international legal instruments; (5) environmental impact assessments; and (6) information and tools for measuring progress.
Increasingly, environmental issues are brought to the attention of UN human rights mechanisms. In 1989, for example, the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities received two complaints on the right to health and the right to a healthy environment, presented by the US-based Sierra Club Legal Defense Fund. One of the cases is about Yasuni National Park in Ecuador.7 This complaint challenged a proposal by a US oil company to build an access road in Yasuni National Park. The road would divide the territory of the indigenous Huaorani Indians and would accordingly damage their culture and way of life. The report claimed that this road construction would violate, among other rights, the right to self-determination and the rights to life and health.
A representative of Friends of the Earth and the Sierra Club Legal Defense Fund made a statement to the sub-commission, urging its members to pay attention to the issue of human rights and the environment. The sub-commission responded to these interventions by adopting a draft decision on the subject of the environment and its relation to human rights, and appointed a Special Rapporteur to study the relation between the environment and human rights.8 In her final report, the Special Rapporteur recognized that the right to health includes protection from natural hazards and freedom from pollution, including the right to adequate sanitation. She explained that the term "healthy environment has been generally interpreted to mean that the environment must be healthy in itself (ecological balance) as well as healthful, which requires that it is conducive to healthy living.
Actions at the National Level
Measures to be taken at the national level include:
One of the best examples of national implementation is the Canadian governments Auditor General Act.9 This act includes three key features: First, it establishes a new office of Commissioner for the Environment and Sustainable Development under the overall function of the Auditor General. The commissioner reports to the Parliament on the progress made by the government towards achieving sustainable development. This is done through annual reports in which the commissioner can analyze matters of his or her choosing concerning the environmental and sustainable development mandates of the different federal government departments. 10
Secondly, the act requires that government departments prepare, by the end of 1997, sustainable development strategies. These were to address both the policies and programs of the department, as well as its environmental stewardship of its own operations. Thirdly, the amendments to the act include different mechanisms for government accountability to the public. These begin with a special petition procedure for members of the public to inquire about governmental activities relating to sustainable development.
National human rights commissions can also be utilized for protecting the right to a healthy environment. For example, Decision 12/1991 of the Council of the National Commission for Human Rights in Mexico assigns to the commission responsibility for dealing with complaints on ecological matters. In this connection, the commission has drawn up a program on human rights, ecology, and health. In 1991 and 1992 the commission made six recommendations. Recommendation 110/91 of 8 November 1991, for example, was in response to a complaint lodged by individuals who maintained that the authorities responsible for controlling and eliminating pollution had failed to keep the public informed. The commission recommended that the authorities concerned should publicize widely through the media the harmful effects of environmental degradation on health and the specific measures the public should take. 11
There have been successful domestic court cases guaranteeing the right to a healthy environment in various countries. The Supreme Court of Costa Rica affirmed the right to a healthy environment.12 The plaintiff brought the action on the grounds that his and his neighbors right to life and a healthy environment had been violated because a cliff in their neighborhood was being used as a dump. The court ordered that the dump be closed immediately and held that the authorities had not been effective or diligent enough in carrying out their obligation to protect life and the environment. The court stated that life "is only possible when it exists in solidarity with nature, which nourishes and sustains us-not only with regard to physical food but also with physical well being. It constitutes a right which all citizens possess to live in an environment free from contamination.13
Author: This module is based on a paper prepared for the Phi Phi Island meeting by Mas Achmad Santosa.
1. The following summary is taken from Donald Worster, "The Vulnerable Earth: Towards a Planetary History, in The Ends of the Earth, ed. Donald Worster (New York: Cambridge University Press, 1988).
2. Taken from Madhav Gadgil, "The Emerging Paradigm, The Hindu, 1 June 1997.
3. Philip Hirsch, "Seeking Culprits: Ethnicity and Resource Conflict, Watershed (Bangkok) 3, no. 1 (July- October 1997): 26.
4. Article 12 of the Constitution of the Republic of South Africa, as adopted on 8 May 1996 and amended on 11 October 1996 by the Constitutional Assembly.
5. Alberto Szekely in Background Paper on National Implementation in Mexico, Workshop on National Implementation of the Principles Contained in the Rio Declaration on Environment and Development, UN Headquarters, 12-14 January 1999.
6. Cited in Lloyd Timberlake, "Freedom of Information on the Environment, Index on Censorship (London: Writers and Scholars International) 18, nos. 6 and 7 (1983): 7,. The relationship between protection of the environment and the right to information and participation was extensively explored in this very interesting issue of Index on Censorship.
7. The description of this case is taken from Brigit C.A. Toebes, The Right to Health as a Human Right in International Law (Intersenti-Hart, Groningen: School of Human Rights Research,1999).
8. Commission on Human Rights, Final Report of the UN Special Rapporteur on Human Rights and the Environment, Mrs. Zohra Ksentini, UN Doc. E/CN.4/Sub.2/1994/9 (6 July 1994).
9. An act respecting the office of the Auditor General of Canada and sustainable development monitoring and reporting, S.C. 1995, c. 43, now incorporated in R.S.C. A-17.
10. Howard Mann, "Implementing Principle 11 of the Rio Declaration: An Example of Best Practices in Canada, prepared for UN Department of Economic and Social Affairs Division of Sustainable Development, November 1998.
11. Commission on Human Rights, op. cit., 92.
12. Costa Rica Constitutional Chamber of the Supreme Court Vote No. 3705, 30 July 1993.
13. Commission on Human Rights, op. cit., 92.
14. The summary of this case is taken from Toebes, op. cit.