Human Rights and the Environment

Key Issues

Sumudu Atapattu, Andrea Schapper

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138722750
• eBook ISBN: 9781351757942
• Topic: Economics
• Subtopic: Sustainable Development
• Index: Economics

The field of human rights and the environment has grown phenomenally during the last few years and this textbook will be one of the first to encourage students to think critically about how many environmental issues lead to a violation of existing rights.

Taking a socio-legal approach, this book will provide a good understanding of both human rights and environmental issues, as well as the limitations of each regime, and will explore the ways in which human rights law and institutions can be used to obtain relief for the victims of environmental degradation or of adverse effects of environmental policies. In addition, it will place an emphasis on climate change and climate policies to highlight the pros and cons of using a human rights framework and to underscore its importance in the context of climate change. As well as identifying emerging issues and areas for further research, each chapter will be rich in pedagogical features, including web links to further research and discussion questions for beyond the classroom.

Combining their specialisms in law and politics, Atapattu and Schapper have developed a truly inter-disciplinary resource that will be essential for students of human rights, environmental studies, international law, international relations, politics, and philosophy.

Part I

Introduction and evolution

1 Human rights and environmental protection

Framing the issues

Introduction

The past two decades have witnessed an upsurge in the recognition of environmental rights around the globe and the use of human rights law and institutions to seek redress for environmental injustices. How did this happen? International human rights law does not recognize a separate right to a healthy environment, yet almost all human rights institutions now recognize that environmental degradation and pollution can lead to a violation of the rights protected under various human rights treaties. It is now generally recognized that human rights can be infringed by environmental degradation.

An example will make this clearer. Suppose there is an industry that produces toys in a particular neighborhood. There are several houses in close proximity to the industrial plant. The operators do not follow any safety standards and dump untreated wastes into a nearby waterway and emit fumes into the atmosphere. People in the area regularly fall sick with respiratory problems, and those who use the water from the river have started getting rashes and other skin diseases and diarrheal problems. It is quite clear that the source of these problems is the industry and its unsanitary practices. Due to this situation, several rights of the people in the area are affected: their right to health, right to privacy and family life, right to water, right to an adequate standard of living and, in very serious cases, even the right to life could be affected.

However, whether this situation amounts to a violation of rights depends on several things: (a) is the industry state owned or privately owned?; (b) is it violating any standards recognized by law in its operations?; (c) does it have a license to operate?; (d) are there any laws and standards in place?; (e) have local authorities taken any action?; (f) are there any extenuating circumstances?; (g) have people complained?; (h) what action, if any, did the authorities take to remedy the situation?; and (i) if it is privately owned, have the government authorities taken any action to control its activities or provide a remedy? These are some of the questions that human rights institutions have examined in similar situations. While environmental issues can impact the enjoyment of rights, they do not necessarily lead to a violation of those rights in every situation. As we will discuss in later chapters, sometimes it is hard to establish the link between environmental issues and protected rights, particularly in the absence of a distinct right to a healthy or safe environment.

This chapter discusses three frameworks that are useful (and have been used) to articulate, interpret, and give context to environmental rights: (a) human rights; (b) environmental justice; and (c) sustainable development, including the Sustainable Development Goals (SDGs) adopted by the international community in 2015. As we shall see, they overlap to some extent, but have unique features that are useful and have been used in relation to environmental rights. Together, they provide a good overarching framework to discuss environmental rights which each one alone cannot do. Before we turn to the three frameworks, we will elaborate on what we mean by “environmental rights.”

What are environmental rights?

Scholars adopt various definitions of environmental rights. For some, they mean just procedural rights of access to information, participation in decision-making, and access to remedies. For others, they mean a substantive (stand-alone) right to a healthy environment. Yet others adopt a hybrid approach to mean all the rights that are used in relation to environmental issues. For example, human rights that are used this way include the right to life in extreme situations, but more often include the right to health, right to food and water, and the right to privacy and family life.

Human rights law and environmental protection inter-relate in four different ways (Anton and Shelton, 2011: 130); the first approach is to include human rights guarantees in environmental instruments. These are mainly procedural in nature. However, some have questioned the efficacy of this approach because most environmental treaties have weak compliance mechanisms. The second approach is to invoke human rights law and institutions when their enjoyment is threatened by environmental harm. Here, of course, the focus is on human beings and protecting their rights, rather than on protecting the environment. The third approach is to adopt a new human right to an ecologically balanced environment, and not purely in relation to human beings, but a sustainable environment in the long run. Many environmentalists oppose the focus on human beings and some human rights advocates oppose it because they feel that it lacks content and its recognition could dilute existing core rights (Alston, 1984). The final approach is to frame this in terms of duties, rather than rights (Shelton, 2001). Whatever approach is adopted, the link between human rights and environmental degradation is undeniable. Adopting a human rights-based approach to environmental issues has both advantages and disadvantages, which we will discuss in Chapter 2.

For the purposes of this book, we will adopt a broad definition of environmental rights that includes both substantive rights and procedural rights. We will discuss these in detail in Chapters 5 and 6, but environmental rights include the right to live in a healthy (or satisfactory, clean, favorable) environment (this could take various forms), and the other human rights that could be infringed by living in a polluted environment – the right to food, water, health, privacy, property, adequate standard of living, and culture. The procedural rights include the right to information, right to participate in the decision-making process, and the right to remedies. To give effect to these rights, states may have to promulgate legislation, put institutions in place, monitor the activities of private individuals and punish them in the event of wrongdoing, ensure the preparation of environmental impact assessment reports, publicize those reports and facilitate public participation, and provide a remedy in the event these obligations are violated (see Ogoniland case, discussed in Chapter 4).

Even the meaning of the word “rights” is contested (Anton and Shelton, 2011). As Roscoe Pound observed: “There is no more ambiguous word in legal and juristic literature than the word right.” Rights can mean legal rights, moral rights, or rights that originate from historic or customary practices, but are not incorporated in a legal document. For example, the eldest child in a family might have the “right” to inherit the family heirlooms in a particular culture or may have the “right” to get the first bite of the first harvest. While these rights are important for that culture or family, they are more like traditions or practices, rather than legal rights.

In this volume, we will not engage in the debate on what rights mean, even though that debate is important. We will simply adopt the human rights framework (as described in the next section) as incorporated in various human rights instruments and as interpreted by various human rights bodies and courts, while appreciating that “rights” are not confined to the legal documents.

Rights imply duties – just as individuals enjoy rights, states have the duty to protect them. There could be situations where rights conflict. These conflicts must be resolved by reference to other principles. Similarly, when rights are infringed, remedies must be available, whether they are judicial or administrative in nature, and some redress must be available to the victim. If no redress mechanism is available, they are not rights in the legal sense.

The tale of three frameworks

Human rights law

Historically, individual rights can be traced to the Magna Carta of 1215. Other documents such as the English Bill of Rights (1689), the French Declaration on the Rights of Man and Citizen (1789), and the U.S. Constitution and Bill of Rights (1791) have all influenced the development of human rights. In addition, some of the rights can be traced to major world religions, which frame them more as duties owed towards others.

The premise of human rights is based on the dignity of the human person and the rights that are recognized accrue to them by virtue of being born human. Some rights such as the right to vote and the freedom of movement are confined to citizens, while other rights are enjoyed by all individuals irrespective of nationality. However, rights are not confined to human beings alone. Animals and corporations have rights, and a more recent development is where nature, including rivers and forests, is accorded legal rights. Some of these developments will be discussed in Chapter 15. Even the notion of “a human being” is now undergoing transformation, in light of technological advancements taking place that have ramifications for human rights.

Human rights are often said to resemble fundamental or natural rights in the natural law tradition – that is, they are rights that do not owe their existence to a legal source and do not depend on legal sanctions. Instead, human rights are claimed to transcend legal systems not in accord with those rights and to obtain in all places and at all times regardless of what the positive law provides. Legal systems should embody rights. If one does not, it is deficient.

(Anton and Shelton, 2011: 121)

The origins of modern human rights law lie in the UN Charter which was adopted in 1945 in the aftermath of the atrocities committed during World War II when the international community vowed “never again.” The Preamble specially refers to the determination “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind,” and “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small” (UN Charter, 1945: Preamble). One of the purposes of the UN is “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (UN Charter, 1945: Article 1.3). The Charter contains a separate chapter on human rights.

The UN Charter was closely followed by the Universal Declaration of Human Rights in 1948 (UDHR, 1948). Although not binding on its signatories, it had a huge influence on the development of human rights law. The UDHR affirmed both civil and political rights, and economic, social, and cultural rights. Eleanor Roosevelt, the U.S. first lady, played a key role in drafting the Declaration. This founding document, adopted in less than two years, was to be followed by a binding document (de Schutter, 2012). However, the Cold War intervened, and it took the international community almost two decades to adopt binding obligations embodied in a treaty. In the end, the obligations in the UDHR were bifurcated along civil and political rights, and economic, social, and cultural rights, and two Covenants were opened for signature in 1966 embodying each set of rights, even though the official UN position is that all rights are universal, indivisible, inter-related, and interdependent (Vienna Declaration on Human Rights, 1993); the two treaties are: the International Covenant on Civil and Political Rights (ICCPR, 1966) and the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966).

Since then, human rights instruments have skyrocketed, with a plethora of human rights treaties and soft law instruments and institutions adopted, not just at the global level, but at the regional level as well. In addition to the two Covenants mentioned above – ICCPR and ICESCR – there are instruments governing specialized groups: the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention for the Protection of Migrant Workers and Members of their Families, the UN Declaration on the Rights of Indigenous Peoples, and the Convention on the Protection of Persons with Disabilities. Moreover, there are treaties that govern specialized issues: the Genocide Convention, the Convention on the Elimination of Racial Discrimination, the International Convention for the Protection of All Persons from Enforced Disappearance, and the Conventio...

Table of contents

• Cover
• Epigraph
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• List of abbreviations
• List of tables
• List of cases
• PART I Introduction and evolution
• PART II Human rights of special relevance to environmental protection
• PART III Climate change and human rights
• PART IV Emerging issues related to environmental rights
• Index