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Max Planck Encyclopedia of Public International Law [MPEPIL]

Clean and Healthy Environment, Right to, International Protection

Birgit Peters

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 24 September 2022

Subject(s):
Indigenous peoples — Right to health — Water — Natural resources — Pollution

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

A.  Introduction

The right to a clean and healthy environment (recently: right to a healthy and sustainable environment [UN HRCouncil ‘Right to a Healthy Environment: Good Practices’ (2019)], the exact formulations differ) is yet to be recognized as an independent right in the international bill of rights (Kotzé [2016] 173). The right is not mentioned in the Universal Declaration of Human Rights (1948) or in the International Covenant on Civil and Political Rights (1966) (‘ICCPR’). Nevertheless, discussions revolving around international recognition of the right to a clean and healthy environment have continued since the early 1970s, when the UN Declaration on Environment (Stockholm Declaration [1972] and Rio Declaration [1992]) stated that ‘[m]an 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….’ (Principle 1 UN Conference on the Human Environment ‘Stockholm Declaration of the United Nations Conference on the Human Environment’ [‘Stockholm Declaration’]; for the scholarly debate on the recognition of the right to a clean and healthy environment see: Boyle 613; Weston and Bollier 116; Grear 23; Shelton [2006] 129; Shelton [2010] 89; Shelton [2015] 12; Woods; Zarsky).

Moreover, both the International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’) and the Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3; ‘CRC’; Children, International Protection) make reference to an adequate condition of the environment (see Art. 12 ICESCR and Art. 24 CRC, in particular). The jurisprudence of human rights bodies to other treaties, like the Human Rights Committee, has started to recognize the application of human rights in environmental contexts (see sections B.3(c) and B.5 below) (Human Rights, Treaty Bodies). The right has also been recognized at regional level (see section C below), in a great number of constitutions, and at sub-constitutional level (see section D below; compare Boyd [2018]; Daly and May [2016] 16; O’Gorman 435).

Considering the extent of international and in particular regional human rights treaties that refer to the environment, their case-law, and the latest discussions on the matter, it seems that today the question to ask about the human right to a clean and healthy environment is not whether the right should be acknowledged internationally, but how.

B.  Recognition of the Right to a Clean and Healthy Environment in International Law

1.  Introduction

Debate on recognition of the right to a clean and healthy environment started in the early 1970s.

2.  The Declarations on Environment and Development and Subsequent Earth Summits (1972–2012)

Discussions began when the Stockholm Declaration stated, ‘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), and thereby recognized the right to live in a clean and healthy environment at the international level. However, subsequent United Nations (UN) summits on environment and development neither acknowledged that right nor the right to a clean and healthy environment in a similar way (Summit Meetings). The Brundtland report ‘Our Common Future’ (Sustainable Development) acknowledged the ‘right to a healthy, life enhancing environment’ in the foreword (Report of the World Commission on Environment and Development: Chairman’s Foreword at 6) but the core text of the report merely recited Principle 1 Stockholm Declaration. It neither affirmed the right to a clean and healthy environment as a human right, nor did it refer to or pledge its recognition at the level of international law (Our Common Future Chapter 12 para. 81). Principle 1 Rio Declaration on Environment and Development of 1992 (‘Rio Declaration’), one of the key instruments of international environmental law, which confirmed many general principles, simply declared: ‘Human beings … are entitled to a healthy and productive life in harmony with nature’ (Environment and Human Rights; Environment, International Protection).

Nor did ensuing UN summits on environment and development uphold the notion of a right to a clean and healthy environment. The Johannesburg Declaration on Sustainable Development of 2002 (‘Johannesburg Declaration’) did not refer to human rights as a means of fostering sustainable development. It merely affirmed the indivisibility of human dignity and ‘access to such basic requirements as clean water … and the protection of biodiversity’ (para. 18). Also the resolution of the UN General Assembly, which summarized the sustainable development goals of the Johannesburg summit, simply referred to the overall goal of the protection of ‘human rights, including the right to development, the rule of law, [and] gender equality’ (UNGA Res 60/1 para. 24 (b); United Nations, General Assembly). Likewise, the ‘Rio+20 Declaration’ made no mention of the right to a clean and healthy environment. Nevertheless, it increased the emphasis on human rights in environmental contexts. For example, it underlined the importance of the right to development, the right to food, and the right to an adequate standard of living in environmental contexts (UNGA Res 66/288 ‘The Future We Want’ [‘Rio+20 Declaration’] paras 8, 108, 121, 138; Development, Right to, International Protection; Food, Right to, International Protection; Standard of Living, Promotion of). It also underscored the rights of nature, which have been recognized in some States and regions of the world (Nature, International Protection). According to the Declaration, it was ‘necessary to promote harmony with nature’ in order to achieve sustainable development (para. 39).

When the attfnturention of international environmental law to the human right to a clean and healthy environment dwindled, other fora, in particular in the field of human rights, began to engage with the nexus of human rights and the environment.

3.  The ‘Human Rights Turn’ (1990–)

(a)  Debate on the Right to a Clean and Healthy Environment as Part of General Discussion on the Link between Human Rights and the Environment

In 1987 and partly in parallel to the debate in international environmental law, discussion in the human rights field began on whether human rights and the environment are intrinsically linked. These reflections have sometimes been referred to as the greening of human rights. The actual descriptions differ. The human rights debate spanned a multitude of aspects and issues at the crossroads between environmental law and human rights law (for example, the question whether environmental rights are individual or collective rights, whether they are owed to future generations, whether they cover the principle of intragenerational equity, procedural environmental rights, etc; see also Intergenerational Equity).

The issue whether the right to a clean and healthy environment should be recognized internationally was part of the larger argument on the connection between human rights and the environment. Discussions on acknowledgement of the right peaked shortly after the Rio Declaration summarized the current framework of international environmental law. Proponents of the view argued that the common interests of nature and society also had a rightful place in international human rights protection (van Dyke 323; Eacott 74; Atapattu; Lee 283). Opponents concluded that environmental problems had no direct bearing on humans and thus on individual human rights (Boyle 613 et seq). The intermediate position maintained that while there may be conflicts between the human rights regime and the international environmental regime, they may be united to advance achievement of their common objectives (Shelton [1991] 105 et seq). Special Rapporteur Fatma Zohra Ksentini of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (see United Nations Commission on Human Rights/United Nations Human Rights Council) proposed a declaration of principles of human rights and the environment in 1994. However, arguments for recognition of the right to a clean and healthy environment did not yet prevail. In particular the Ksentini declaration was not adopted by the then Human Rights Commission.

(b)  The Rise of Procedural Environmental Rights

10  Although no international consensus developed on the recognition of the right to a clean and healthy environment, a certain agreement emerged on the importance and recognition of procedural environmental rights. Procedural environmental rights emphasize human rights relevant for the implementation of (international) environmental standards in national and international decision-making procedures (Peters 1 et seq), mostly the right to information, participation, and access to justice in environmental decision-making (Peters 1 et seq; Pavoni 83). Many regional and international declarations and treaties acknowledge procedural environmental rights. At the international level, the Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters of 2010 (‘Bali Guidelines’) deal exclusively with this group of rights. At the regional level, the UNECE Convention on Environmental Impact Assessment in a Transboundary Context (‘Espoo Convention’), the Aarhus Convention (Compliance Procedure: Aarhus Convention; Access to Justice in Environmental Matters; Access to Information on Environmental Matters; Public Participation in Environmental Matters), and the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (‘Escazú Agreement’) primarily guarantee procedural environmental rights. And whereas the Bali Guidelines do not link procedural environmental rights to the right to a clean and healthy environment, the Aarhus Convention and the Escazú Agreement both acknowledge that the procedural environmental rights contained in those agreements form the procedural elements of a right to a clean and healthy environment.

(c)  Human Rights Litigation in Environmental Contexts

11  Since the end of the 1990s, and bolstered by the growing consensus on the right to access to justice in environmental matters, international, regional, and national human rights litigation has increasingly covered cases of environmental risk and damage: especially before regional human rights courts, like the European Court of Human Rights (ECtHR) or the Inter-American Court of Human Rights (IACtHR) (see section C below). Also at the national level, more and more claimants have relied on violations of human rights to enforce State compliance with international environmental standards (for an overview of jurisprudence and the issues involved see: Maljean-Dubois; Peel and Osofsky 37; Peel Osofsky and Foerster). This marked a ‘rights turn’ in environmental and climate change litigation. According to Daly, May, and Kotzé, the development contributed to emerging international environmental constitutionalism (Kotzé [2012] 199; Kotzé [2016]; May and Daly [2014]; O’Gorman 435).

(d)  Appointment of Special Rapporteurs by the Human Rights Council

12  With growing support for the application of human rights in environmental and climate change cases, global debate on the recognition of the right to a clean and healthy environment regained momentum. In 2012, the Human Rights Council appointed John Knox as independent expert and in 2015 as Special Rapporteur on the ‘issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment’ (UN HRCouncil Res 19/10 ‘Human Rights and the Environment’ [19 April 2012] UN Doc A/HRC/RES/19/10 para. 2; Special Rapporteurs of Human Rights Bodies). Knox prepared several reports on various aspects of human rights obligations related to the enjoyment of a clean, healthy, and sustainable environment, such as best practices or specific human rights obligations (see the home page of the Special Rapporteur, <https://www.ohchr.org/en/Issues/environment/SRenvironment/Pages/SRenvironmentIndex.aspx> [31 October 2020]). In 2018, David Boyd was appointed successor to Knox to continue work on identifying State obligations, best practices, and obstacles to enjoyment of a clean, healthy, and sustainable environment in international law (UN HRCouncil Res 37/8 ‘Human Rights and the Environment’ [2018] para. 6 et seq; UN HRCouncil ‘Right to a Healthy Environment: Good Practices’ [2019]).

13  Although the appointment of Special Rapporteurs marked a new focus on human rights and the environment, it is noteworthy that the mandate of the two rapporteurs was not formulated to identify ‘obligations of states pertaining to enjoyment of the right to a clean and healthy environment’. Rather, they were called upon to identify human rights obligations ‘relating to’ enjoyment of ‘a clean, healthy and sustainable environment’ in international law.

4.  Work towards a Global Pact for the Environment

14  In 2017, discussions around the recognition of a human right to a clean and healthy environment re-emerged in international environmental law, in talks about a Global Pact for the Environment. The pact is intended as a response to ‘growing threats to the environment and the need to act in an ambitious and concerted manner at global level to better ensure its protection’ (Global Pact for the Environment [Preliminary Draft]; ‘Draft Pact’). In 2018, Laurent Fabius, then president of the French constitutional court and representative of the United Nations for environmental governance, chaired the writing of a first draft of this pact by a select group of experts. The pact’s very first article explicitly recognizes the ‘right to an ecologically sound environment’ and reads: ‘Every person has the right to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment’. In the follow-up to the draft, the General Assembly acknowledged the work of the experts, adopting Resolution No 72/277 ‘Towards a Global Pact for the Environment’ (UNGA Res 72/277 [10 May 2018] UN Doc A/RES/72/277). It mandated the UN Secretary-General to identify ‘gaps in international environmental law’ in order to explore the need for a global pact (UNGA ‘Report of the Secretary-General: Gaps in International Environmental Law and Environment-Related Instruments: Towards a Global Pact for the Environment’ [30 November 2018] UN Doc A/73/419; United Nations, Secretary-General; the concept of gaps is, however, controversial, see French and Kotzé 25). In his 2018 report, the Secretary-General expressed the need to clarify environmental principles, including the right to a clean and healthy environment, in a global document (Report para. 18 et seq). Although it is too early to conclude that this new initiative will lead to recognition of the right to a clean and healthy environment at the international level, it has most certainly reopened international discussion on the matter.

5.  Indirect Recognition of the Right to a Clean and Healthy Environment in International Human Rights Law

15  International human rights treaties do not exclude references to the environment. The most important provision eliciting a link between human rights and the environment is Art. 12 ICESCR, which envisages the right to health (Health, Right to, International Protection). More specifically, paragraph 2 of that article, which articulates the steps taken by States to achieve that right, include ‘(b) The improvement of all aspects of environmental and industrial hygiene’. This provision has been interpreted by the Committee on Economic, Social and Cultural Rights (CESCR) to include the duty to protect the environment. In General Comment No 14 on the Right to Health, the CESCR emphasized that the drafting history on the right to health showed that the right was not to be defined narrowly. Rather, the CESCR argued, the right to health embraced ‘a wide range of socio-economic factors that promote conditions in which people can lead a healthy life’ including ‘a healthy environment’ (UN CESCR ‘General Comment No 14’ para. 4). Quoting Principle 1 Stockholm Declaration, the CESCR found that this included the right to a healthy natural and workplace environment, free from pollutants or harmful substances (General Comment No 14 para. 15). In the subsequent General Comment No 15 on the Right to Water, the CESCR refined the obligations and requirements enshrined in the right to health (see also Water, Right to, International Protection). The Committee emphasized that the right to health, in particular the duty of States to regulate environmental hygiene, contained in Art. 12 (2) (b) ICESCR, includes the protection of natural water resources and aquatic eco-systems, so that they do not pose a threat to humans (UN CESCR ‘General Comment No 15’ para. 8).

16  The most explicit references to the right to a clean and healthy environment can be found in the CRC. In its preamble, the Convention states the conviction that ‘the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection’. Moreover, Art. 24 CRC, which guarantees the right to health of children, recommends that States, in the protection of this right, take into ‘consideration the dangers and risks of environmental pollution’. These references in international human rights instruments implicitly recognize the right to a clean and healthy environment.

17  Notwithstanding the foregoing, international human rights instruments with no explicit reference to the environment are increasingly interpreted by human rights adjudicatory bodies to include obligations which pertain to the environment. In September 2019, the Human Rights Committee, which oversees implementation of the ICCPR, acknowledged that the human rights obligations pertaining to the protection of the right to life, guaranteed in Art. 6 ICCPR, also extended to protection against negative environmental impacts, such as disasters and storms (UN HRC ‘General Comment No 36’ para. 26; Life, Right to, International Protection). The UN HRC further clarified that the obligation to protect the right to life of States party to the ICCPR covered the duty to cooperate, as well as the observation and conclusion of multilateral agreements, with the aim of protecting the environment (General Comment No 36 para. 60). A first communication already reaffirmed these findings (UN HRC ‘Communication No 2751/2016, Portillo Cáceres v Paraguay). In that communication, the UN HRC also concluded that pollution of the environment could lead to a violation of Art. 17 ICCPR, which guarantees, among other things, the right to family (Portillo Cáceres v Paraguay para. 7.8; Family, Right to, International Protection).

18  Most significantly, in 2020, the UN HRC extended this view to climate change scenarios. It pondered a violation of the right to life in a non-refoulement situation which dealt with the adverse effects of climate change in Kiribati (UN HRC ‘Communication No 2728/2016, Teitiota v New Zealand’ para. 9.11). In the case, the UN HRC established that all States party to the ICCPR have an obligation to protect applicants from threats and life-threatening situations that can result in loss of life (para. 9.4). They therefore also had a responsibility not to send individuals back into such situations (ibid).

C.  Regional Recognition of the Right to a Clean and Healthy Environment

19  Regional human rights conventions have long guaranteed the right to a clean and healthy environment.

1.  The Americas

20  Regional recognition of the human right to a clean and healthy environment in the Americas dates back to 1998. With adoption of Advisory Opinion OC-23/17 of the IACtHR, on human rights obligations to protect the environment and the Escazú Agreement, the region recently made an important contribution towards recognition of the right (Advisory Opinions; Advisory Opinion: Inter-American Court of Human Rights [IACtHR]).

(a)  The ACHR, its Protocols and its Interpretation by the IACtHR

21  The right to a clean and healthy environment is guaranteed as an independent human right by Art. 11 (1) Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (‘Protocol of San Salvador’). Art. 11 Protocol of San Salvador states: ‘Everyone shall have the right to live in a healthy environment and to have access to basic public services.’ However, the provision cannot be enforced by individual petitions (ibid Art. 19 (6)–(7)).

22  In addition, Art. 26 American Convention on Human Rights (‘ACHR’; American Convention on Human Rights [1969]) deals with the progressive development of the ‘economic, social, educational, scientific and cultural standards set forth in the Charter of the Organization of American States’. This provision has been interpreted by the IACtHR to contain obligations of States party to the ACHR in the area of social and economic rights. The Court found that the provision covered obligations to fulfil the social and economic guarantees included in the Charter of the Organization of American States (‘OAS Charter’; Organization of American States [OAS]), referring to Arts 30, 31, 33, and 34 OAS Charter (Lagos del Campo v Peru para. 144; Hernández v Argentina para. 62).

23  In Advisory Opinion OC-23/17 on the obligations of States pertaining to the guarantee of the right to life and to personal integrity in the context of the environment, the Court established for the first time that Art. 26 included the legal basis for the right to a clean and healthy environment in the ACHR (Advisory Opinion OC-23/17 para. 57). Moreover, the Court recognized that the right to a clean and healthy environment must be considered an autonomous human right (ibid para. 62). In order to protect this right, the Court found States had to guarantee present and future generations: ‘(a)…without any discrimination, a healthy environment in which to live; (b)…basic public services; (c)…environmental protection; (d)…environmental conservation, and (e) [the] improvement of the environment’ (ibid paras 59–60). Whether this guarantee was met could be assessed using the criteria elaborated by the OAS on air, soil, and water quality, or biodiversity (ibid para. 60). Most notably, however, the Court considered that the right to a clean and healthy environment not only obliged States to protect the life and health of their citizens, it also obliged States, party to the ACHR, to protect the environment for the sake of all organisms living on the planet (ibid para. 62). Recognition of the right to a clean and healthy environment by States could therefore go as far as recognizing the rights of nature or natural objects as individual legal personalities with an individual claim to protection (ibid para. 62). Those final findings extend the scope of the right to a clean and healthy environment beyond the individual human being and aim to protect natural interests in their own right.

24  The interpretation, which regarded not only Art. 11 Protocol of San Salvador but also Art. 26 ACHR as a basis for an independent guarantee of the right to a clean and healthy environment in the Inter-American human rights system, was recently reaffirmed in the Lhaka Honhat decision (Case of the Indigenous Communities of the Lhaka Honhat [Our Land] Association v Argentina). Although the Court had already underlined the autonomous character of that right in Advisory Opinion OC-23/17, it had not specifically addressed the question whether the autonomous character of the right could be derived from Art. 26 ACHR. The Lhaka Honhat case affirmed that Art. 26 ACHR safeguarded individual and autonomous guarantees, among others, to a clean and healthy environment (para. 195).

25  Pertaining to the obligations of States to safeguard the right to a clean and healthy environment, the Lhaka Honhat decision concurred with the advisory opinion, in that States must not only respect but also protect this right (Lhaka Honhat para. 207). The obligation to protect included the pledge that all State authority, whether legislative, executive, or judicial, would work toward protection of this right and would prevent violations (ibid). States were also obligated to prevent harm to the environment before it occurred (ibid para. 208). That obligation entailed further duties, such as conducting environmental impact assessments, following up implementation, and mitigating damage to the environment once it occurred (ibid). The Lhaka Honhat decision therefore clarifies some important findings of Advisory Opinion OC-23/17.

26  Besides this recent jurisprudence, various decisions of the IACtHR have affirmed that the human rights guaranteed in the ACHR, in particular those of indigenous communities, apply in environmental contexts (for a summary of the case law see Advisory Opinion OC-23/17 para. 64, note 103; see also Indigenous Peoples; Environment and Indigenous Peoples). For example, the Court has affirmed that persons affected by environmental projects have a right to obtain State-held environmental information according to Art. 13 ACHR (see Claude Reyes et al v Chile para. 72 et seq). Moreover, the State has a duty under Art. 1 (1) ACHR to investigate the circumstances of the murder of an environmental human rights defender (Kawas-Fernández v Honduras para. 101 et seq) or to map and demarcate the territory of an indigenous community so that it can enjoy its collective property (Case of the Mayagna [Sumo] Awas Tingni Community v Nicaragua paras 148, 153).

(b)  The Escazú Agreement

27  Mostly in parallel to the preparation of the advisory opinion on the right to a clean and healthy environment at the IACtHR, the States party to the UN Economic Commission on Latin America and the Caribbean (‘UNECLAC’) agreed on ensuring individual access to a clean and healthy environment in a separate international agreement. The Escazú Agreement was adopted in March 2018 (for the status of ratifications see <https://www.cepal.org/en/escazuagreement> [last accessed 2 November 2020]). The agreement establishes and acknowledges rights to information, participation, and access to justice in environmental affairs (Arts 6–8). It also contains special provisions for the recognition and protection of environmental human rights defenders (Art. 9). The agreement understands these rights as lending expression to the right to a healthy and sustainable environment that has been accepted in various Latin American constitutions (Art. 1; compare Olmos Giupponi 137 et seq). Accordingly, the agreement identifies its primary objective as guaranteeing that the access rights provided for in the agreement contribute to the ‘protection of the right of every person of present and future generations to live in a healthy environment and to sustainable development’ (Art. 1 Escazú Agreement). The agreement is not yet in force, but has been signed by a majority of Latin American States.

2.  Europe

(a)  The Aarhus Convention and the Charter of Fundamental Rights of the European Union

28  In Europe, the most influential example of the recognition of the right to a clean and healthy environment is the Aarhus Convention of 1998, to which 47 members of the UN Economic Commission for Europe (‘UNECE’) are parties. The preamble of the Aarhus Convention provides that ‘every person has the right to live in an environment adequate to his or her health and well-being’. The Convention also identifies its primary objective in Art. 1, namely that ‘[i]n order to contribute to the protection of [that right]’, each party to the convention shall guarantee the ‘rights of access to information, public participation in decision-making, and access to justice in environmental matters’. Thus the convention’s contribution to safeguarding the right to a clean and healthy environment lies in guaranteeing procedural environmental rights to information, participation, and access to justice.

29  The Aarhus Convention has been implemented in numerous acts of secondary legislation (regulations, directives) at different levels in the European Union (‘EU’). The European Court of Justice oversees its implementation at the member State level. It may therefore be safely concluded that the procedural components of the right to a clean and heathy environment outlined in the Aarhus Convention have found overall recognition in the EU.

30  By contrast, the Charter of Fundamental Rights of the European Union (2000), which sets out the fundamental rights of citizens of the EU in relation to the Union, does not recognize a right to a clean and healthy environment. It merely refers to the guarantee of ‘a high level of environmental protection’ (Art. 37), which is commonly interpreted in the sense that this provision does not provide any further protection beyond what the Union pledges in Art. 191 Treaty on the Functioning of the European Union (see Explanations relating to the Charter of Fundamental Rights [2007] OJ C303/17, 27).

(b)  The European Social Charter

31  The right to a clean and healthy environment has also been recognized under various other treaties that apply in the wider Europe. Most prominently, the European Committee on Social Rights (‘ECSR’) has interpreted Art. 11 European Social Charter, which guarantees the right to health, in the sense that it includes the right to a healthy environment (International Federation for Human Rights [FIDH] v Greece para. 49 et seq; Marangopoulos Foundation for Human Rights [MFHR] v Greece para. 195). Considering the specific obligations of States to safeguard this right, the Committee established that State ‘[m]easures required under Article 11 should be designed, in the light of current knowledge, to remove the causes of ill-health resulting from environmental threats such as pollution’ (Marangopoulos Foundation for Human Rights [MFHR] v Greece para. 202). Generally, the Committee found that specific State obligations could be derived from the jurisprudence of the ECtHR, especially on Arts 2, 3, and 8 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’) (International Federation for Human Rights [FIDH] v Greece para. 50 et seq). This conclusion followed from the intrinsic link between the European Social Charter and the ECHR, both of which were formulated to protect the value of human dignity in European human rights law (International Federation for Human Rights [FIDH] v Greece para. 50; Human Dignity, International Protection).

(c)  The ECHR

32  Many elements of a right to a clean and healthy environment have been recognized by the ECtHR. The Court has interpreted various core articles of the ECHR to apply in environmental cases. The Court has considered environmental degradation under the guarantees of the right to life (Öneryıldız v Turkey), the prohibition of torture and inhuman and degrading treatment (Brânduse v Romania; Torture, Prohibition of), the right to home and family (Hatton v United Kingdom para. 96), the right to information (Vides Aizsardzibas Klubs v Latvia), and the right to a fair trial (Kursun v Turkey para. 114; Fair Trial, Right to, International Protection). The Court will soon discuss which of those rights apply to environmental threats related to climate change (Youth for Climate Justice v Portugal).

33  The positive obligations that bind States to protect these rights are wide-ranging and include substantive as well as procedural elements. Starting with the substantive obligations, the Court held, for example, that States should prosecute and punish environmental polluters who have caused environmental damage (Öneryıldız v Turkey para. 93), ie the polluter pays principle (Sands and Peel 240). The Court also found that States should act on the side of caution when faced with technologies that may lead to unknown and possibly harmful risks, thereby recognizing the precautionary principle (Precautionary Approach/Principle).

34  Concerning the procedural obligations, the ECtHR emphasized, for example, that States may be obliged to enact relevant environmental legislation (Hatton v United Kingdom; see Kursun v Turkey para. 115; Jugheli and others v Georgia para. 75). The Court also established that States must assess the environmental impact of projects that concern the environment (Tătar v Romania para. 114). Finally, but not less importantly, the Court regarded the Aarhus Convention as relevant international law for the interpretation of the rights enshrined in the ECHR. Accordingly, it interpreted several of the rights of the ECtHR, in particular the right to home and family guaranteed in Art. 8 ECHR, to include procedural rights to information (starting with the case Guerra and others v Italy paras 58, 60), participation (Grimkovskaya v Ukraine para. 72), and access to justice in environmental matters (Taskin v Turkey paras 118, 119; compare Giacomelli v Italy para. 83).

35  The case-law of the ECtHR has thus addressed many substantive as well as procedural obligations associated with the human right to a clean and healthy environment. Despite this fact, the ECtHR has time and again emphasized that the ECHR does not guarantee a right to a healthy and clean environment as such (López Ostra v Spain para. 51; Hatton v United Kingdom para. 96; Furlepa v Poland para. 2; Leon and Agnieszka Kania v Poland para. 98).

3.  Africa: The Arab Charter for Human Rights and the African Charter on Human and Peoples’ Rights

(a)  The Arab Charter on Human Rights

36  The Arab Charter on Human Rights (2004) provides in Art. 38: ‘Everyone shall have the right to an adequate standard of living for himself and his family, ensuring well-being and a decent life, including adequate food, clothing, housing, services and a right to a safe environment. The State Parties shall take appropriate measures within their available resources to ensure the realization of this right.’ Nonetheless, there is no complaint or oversight mechanism which can review implementation of this right at the international level (Knox and Pejan 7).

(b)  The African Charter on Human and Peoples’ Rights

37  The African Charter on Human and Peoples’ Rights (1981) (‘AChHPR’; ‘Banjul Charter’) is the first treaty to recognize the right to a generally satisfactory environment at the international level (Chenwi 62). The Charter states in Art. 24 that ‘[a]ll peoples shall have the right to a general satisfactory environment favourable to their development’. Art. 21 (1) AChHPR also recognizes the rights of peoples to ‘freely dispose of their wealth and natural resources’.

38  Both rights are formulated as collective, not individual rights. Despite the foregoing, the African Commission on Human and Peoples’ Rights (ACommHPR) has interpreted the term ‘people’ rather broadly, as including a ‘collective of individuals’. Hence several individuals may invoke the rights guaranteed in Arts 21 and 24 when they have suffered ‘collectively from the deprivation of this right’ (Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v Kenya para. 151).

39  In Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria, the ACommHPR interpreted Art. 24 in conjunction with Art. 16 of the Charter, which guarantees the right to health. It found that both rights recognized the ‘importance of a clean and safe environment’ (para. 51). More particularly, the Commission considered that the guarantee in Art. 24 of the Charter required ‘the state to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure ecologically sustainable development and use of natural resources’ (Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria para. 52). This included ‘permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to communities exposed to hazardous materials and activities, and providing meaningful opportunities for individuals to be heard and to participate in development decisions affecting their communities’ (ibid para. 53).

4.  Asia: ASEAN Declaration on Human Rights

40  The Human Rights Declaration of 19 November 2012 of the Association of Southeast Asian Nations (ASEAN) guarantees the right to a clean and healthy environment in its Art. 28 (f). It is listed as one of the elements of the right to an adequate standard of living (‘right to a safe, clean and sustainable environment’) and mirrors the current international wording of the right (Renshaw 557, 573). Renshaw characterized it as a solidarity right, since the effects of environmental degradation can usually be felt in cross-border scenarios (ibid 573). The ASEAN Intergovernmental Commission on Human Rights is responsible for promotion and protection of the rights guaranteed by ASEAN (Art. 1 (1) Terms of Reference of the ASEAN Intergovernmental Commission on Human Rights July 2009; Southeast Asian Court of Human Rights). However, it has no mandate to hear individual complaints (Knox and Pejan 7).

D.  Recognition of the Right to a Clean and Healthy Environment in National Law

41  The right to a clean and healthy environment has been recognized in 100 national constitutions and at the level of national law in about the same number of States (Boyd [2018] 19 et seq; Boyd [2012] 45 et seq). In particular, Latin American constitutions explicitly or implicitly guarantee the right to a clean and healthy environment or contain specific environmental guarantees. But in a similar manner, many other constitutions also guarantee the right to a clean and healthy environment (see list in Boyd [2018] 19 et seq). The exact provisions vary. Some constitutions grant the right to a clean and healthy environment as an individual guarantee, and others provide it as a collective right or a general principle. Nonetheless, research indicates that the existence of national constitutional provisions protecting the right to a clean and healthy environment leads to better national environmental performance (Boyd [2018] 26; Boyd [2012] 253).

E.  Assessment

42  If we consider the recent judicial and policy practice that has evolved with regard to the application and recognition of the procedural or substantive elements of a right to a clean and healthy environment at the level of international law, the question whether a right to a clean and healthy environment has been or should be recognized in international law seems less and less important. The application of human rights in environmental contexts has become part of the day-to-day practice in many international human rights treaty bodies, whether or not the underlying conventions recognize an individual right to a clean and healthy environment. It therefore appears that discussion on international recognition of a right to a clean and healthy environment should concentrate on assessment of how human rights obligations with regard to climate and environment have already been included in the current discourse on human rights and international environmental law. It could also tackle areas of clear incompatibilities or difficulties in order to achieve the further alignment of human rights and environmental law (Maljean-Dubois para. 42).

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