A survey of the legal literature clearly shows that something important is transpiring in the area of human rights and the environment. The events at the "intersection"1 of human rights and the environment indicate that changes are occurring in international human rights law.2 What, precisely, is going on is not so clear. This paper will briefly examine the various trends in this area of international human rights law, particularly the rights discourse, and assess which of them seems to be prevailing.
It is submitted that one of the next major developments in international human rights law will have an environmental aspect. Just as human rights law and international law responded to the cataclysmic events and newly perceived threats of the 1940s (namely the atrocities of the Second World War and the new threat posed by nuclear power), so is the law of our time responding to an immensely destructive force that science and technology have only relatively recently allowed us to perceive: environmental degradation.
Currently, much work is being done in the area of human rights and the environment. From all the debate and discussion at the UN, NGOs, regional bodies, tribunals and think-tanks emerges on point of common ground: international law of human rights has clearly recognized a relationship between human rights and the environment.6 It remains for the international law of human rights to throw its support behind one particular vision of legalizing this relationship.
As the law stands today there are three main conceptions of the relationship between human rights and the environment. They are articulated in various international conventions and documents, international court decisions, and scholarly writings; however, none has clearly reached the status of being a principle of international human rights law. These three approaches are the contextual approach, the environmental human right approach, and the ecological limitations approach to human rights.7
Before considering these three approaches in more detail, it must be noted that these approaches are informed by the purposes for which they are advocated. Two broad purposes should be distinguished: the aim of human protection and the goal of environmental protection. Human protection refers to the desire to protect humans from threats caused by environmental degradation, which is in turn caused by other humans. By environmental protection it is meant the protection of the environment from damage caused by human activity.
To some extent these overlap, but it is possible to have environmental harm without implicating any danger to humans in the short or medium term.8 Thus, incorporating environmental protection into human rights law may not be sufficient to achieve the goals of environmental protection. On the other hand, a separate body of environmental law exists for this purpose and international human rights law can help to achieve some goals of environmental protection that international environmental law cannot: in particular, it provides a recourse for environmental degradation that is domestic in scope.9
The Contextual Approach
The contextual approach consists in placing environmental concerns into the context of an established or developing right10 rather than establishing an independent human right to the environment. It is basically a method of interpretation that links environmental concerns to existing human rights.
The European Court of Human Rights seems to be taking just such an approach. The ECHR has found a link between the environment and the right to enjoy private and family life as expressed in Article 8 of the European Convention on Human Rights.11 In addition, the Inter-American Court of Human Rights has found that Brazil violated the Yanomani Indian's right to life, liberty and personal security by not taking measures to prevent certain environmental damage.12 However, the recent entry into force of the Protocal of San Salvador, which contains a right to a healthy environment, will likely change the court's reasoning.13
The International Court of Justice also seems to have adopted a conservative contextual approach and has not gone further than stressing the need for states to take into account new environmental norms.14 However, indications are that it may ultimately end up taking the environmental human rights approach. For exampel, the separate opinion of Weeramantry in Gabcikovo stated that the people of Hungary and Slovakia are "entitled to the preservation of their human right to the protection of their environment."15
Similarly, there have been hints by the UN Human Rights Committee in the direction of the contextual approach. In E.H. P. v. Canada,16 the Committee found that nuclear waste disposal involved article 6(1), right to life, issues, but ultimately held the complaint inadmissible for other reasons.
Finally, the contextual approach seems to have been used in at least one international convention: the 1989 Convention on the Rights of the Child which refers to environmental quality in article 24 in obliging states to take measures to ensure a child's right to health, including (e) combatting "disease, malnutrition...through, inter alia, ....the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution".17
The Environmental Human Right Approach
The environmental human right approach entails establishing an independent human right to a healthy, clean, ecologically balanced (or some other positive qualification of the) environment. There is much discussion as to what such a right would look like and how it fits into the concept of generations of rights, but it is beyond the scope of this paper to deal with such issues.
Examples of universal-level documents interpreted as supporting this approach are the Stockholm Declaration18 of the 1972 UN Conference on Human Environment and the Rio Declaration19 of the 1992 UN Conference on Environment and Development. It should be noted that neither Declaration are legally binding at international law but both have been endorsed by the U.N. General Assembly.20
The Stockholm Declaration states that "man has the fundamental right to freedom, equality, and adequate conditions of life, in an environment of quality that permits a life of dignity and well- being and he bears a solemn responsibility to protect the environment for present and future generations." In contrast, Rio does not use clear rights language. Principle 1 of the Rio Declaration provides, "Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature." The Rio Declaration is considered by some to be a retreat from Stockholm's willingness to grant a right and its reference to sustainable development places human protection above environmental protection.21 On the other hand, it seems to have a slightly less anthropocentric leaning with its reference to "in harmony with nature". This ambiguity in the language of the Rio Declaration is perhaps evidence that this version of the legal characterization of the relationship between human rights and the environment -- the environmental human right version -- is less likely to prevail.
Principle 1 of the Rio Declaration has been accepted with no reservations at several other international meetings: 1994 UN Conference on Population and Development, the 1995 World Summit for Social Development, the Second UN Conference on Human Settlements, and the OAS 1997 Hemispheric Summit on Sustainable Development.22 As Lee notes, while this reaffirmation goes toward establishing state practice for a custom of international law it is significant that the most recent UN Conference devoted specifically to human rights (the 1993 UN World Conference on Human Rights) did not articulate any human right to a healthy environment.
Documents that most clearly articulate a human right to the environment are the Universal Convention for the Environment as a Human Right recommend by the 1989 International Congress on Efficient Environmental Law and Setting Up an International Court for the Environment within the United Nations23 and the 1994 Draft Declaration of Principles on Human Rights and the Environment.24
The Draft states in Principle 2 that "all persons have the right to a secure, healthy and ecologically sound environment" and specifically categorizes it as a human right. The Draft is the result of a UN requested meeting of an international group of experts on human rights and the environment. To date, no action has been taken regarding the Draft Principles by the General Assembly, the Commission on Human Rights or the Economic and Social Council.25
It is not certain that adoption of the Draft Principles at international law would clarify that relationship between human rights and the environment in international human rights law. This is in part because the Draft Principles pursue the twin goals of human rights protection and environmental protection,26 which may sometimes conflict. Consideration of principles 2, 4, 5, 6 and 21 illustrates this.
Principle 2 two has been quoted above and clearly articulates human concerns in granting the right to the environment. Principle 5 reads, " All persons have the right to freedom from pollution, environmental degradation and activities that adversely affect the environment, threaten life, health, livelihood, well-being or sustainable development within, across or outside national boundaries." Here humans are the central focus of the right but concern for negative effects on the environment are included. Further, the use of the word "or" indicates that environmentally degrading activities would not have to effect human health, life, livelihood, well-being or sustainable development for the right to be invoked. A similar structure prevails in principle 6 which states that "all persons" are granted "the right to protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems."
Finally, principle 21, the most ecologically focused of the principles reads, "All persons, individually and in association with others, have a duty to protect and preserve the environment." Thus, the Draft Principles seems to articulate both an anthropocentric approach and an ecocentric approach to the relationship between human rights and the environment. If ever adopted, it will be difficult to argue that one approach prevails over the other in the international law of human rights on the basis of such a text.
Another important source of support for the environmental rights approach is the conclusion of the Special Rapporteur to the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights in 1994: she called for the UN to work toward developing a right to a satisfactory environment.27
Further attempts at the international level to recognize such a right include the proposal of the Ukrainian delegation to the UN regarding environmental rights. In 1990, they proposed, (1) the right to ecologically clean foodstuffs; (2) the right to ecologically harmless consumer goods; (3) the right to engage in productive activities in ecologically harmless conditions; (4) the right to live in ecologically clean natural surroundings; (5) the right to obtain and disseminate reliable information on the quality of foodstuffs, consumer goods, working conditions, and the state of the environment; (6) the right to participate in the solution of problems connected with the siting of industrial enterprises and the use of technology that might place the lives and health of people at risk; and (7) the right to compensation for the impairment of health due to the pollution of the environment and to other harmful influences acting on the environment or the irrational use of natural resources.28
Also, in 1990, the U.N. Economic Commission for Europe Experts Meeting in Oslo adopted the Draft ECE Charter on Environmental Rights and Obligations. More recently in 1995 the International Union for the Conservation of Nature Commission on Environmental Law produced a Draft International Covenant on Environment and Development. Both documents provide for a right to an "adequate" environment but neither have gone beyond the draft stage.29
At the regional level, an environmental human right has been explicitly created and ratified by the Organization of American States and Africa but not Europe.30 The Protocol of San Salvador (discussed above) states in article 11 that, "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."31 The 1981 African Charter on Human and Peoples Rights32 states that " All peoples shall have the right to a general satisfactory environment favourable to their development."
Europe has made many attempts to achieve such a right but has not been successful. The Council of Europe in particular has always been active in this area of the law and has been entertaining proposals since 1970 to add a right to the environment to the European Convention on Human Rights. For example, the European Conference on the Protection of Nature (1970) proposed a protocol to the European Convention to protect the right to a healthy and non-degraded environment and similar proposals were made various entities in the EU in by the Parliamentary Assembly in 1972, 1973, 1978 and 1987.33 However, to date none of these initiatives have been successful. But they indicate that if Europe were to try to articulate the relationship between human rights and the environment, it is likely to do so in the form of an environmental human right.
While this list of documents is substantial, the general view is that a human right to the environment has not yet reached the status of being explicitly established by a widely-ratified convention or treaty and is not yet a principle of customary international law, but rather is in the process of evolution.34
Writers reviewed for this paper who support some human right to the environment are Smith, who formulates it as a human right to clean air and a clean environment. While he refers to the goal of environmental protection,35 it is clear from the background to his article that he conceives of humans as the primary beneficiaries of such a right as a way to protect human health. Lee argues for a well-defined, narrow human right to a healthy environment that arises only when an environmental violation also amounts to a human rights violation.36 Shelton, after surveying developments in this area of the law, concludes that the environmental human rights approach seems to be leading and that a clear, narrow international human right to a healthy, safe environment is "currently emerging".37 Thus, there is a substantial body of scholarly writing arguing for such a right at international law.
The Ecological Approach
The ecological approach involves an "ethical paradigm shift" that seeks to overcome the "inherent anthropocentricity" of environmental human rights.38 The argument is that human rights necessarily prioritize human needs over the needs of other species, nature and the environment and serve to perpetuate environmental degradation. The ecological approach calls for recognizing that humans simply are part of wider biosphere that needs to be protected and advocates limiting human rights. Thus, just as limitations are presently placed on human rights in the name of the social or public interest, so to should ecological limitations be placed on the exercise of human rights. As Taylor puts it, such limitations would "recognize that individual freedoms are exercised in an ecological context as well as a social context".39 As such, this approach is focused on the intrinsic value of the environment (ecocentric) rather than on humans (anthropocentric).
Few international documents have an ecocentric focus, and even fewer may be characterized as involving international human rights law.40
In 1982, the UN World Charter for Nature, a non-binding document with an ecocentric approach, was adopted by the UN General Assembly.41 In "General Principle I" it declares that "nature shall be respected and its essential processes shall not be impaired". The 1991 U.N. Draft Earth Charter, which was ultimately replaced by the Rio Declaration at the U.N. Conference on Environment and Development, took an ecocentric approach.42 The NGO drafted Earth Charter picked up where the U.N. left off and recognizes, "that all beings are interdependent and every form of life has value regardless of its worth to human beings."43
Binding conventions taking an ecocentric approach include the 1985 Association of South East Asian Nations Agreement on the Conservation of Nature and Natural Resources, the 1980 Convention for the Conservation of Antarctic Living Resources, the 1991 Protocol to the Antarctic Treaty on Environmental Protection, the Berne Convention on the Conservation of European Wildlife and Natural Habitats and the Convention on International Trade in Endangered Species of Wild Fauna and Flora.44
One of the few binding products of the UNCED which produced the Rio Declaration, is the Convention on Biological Diversity,45 whose preamble reads, "Conscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components...." -- this is clearly an ecocentric approach. Further, the draft IUCN World Conservation Union International Covenant on Environment and Development states as a fundamental principle (Article 2), "[n]ature as a whole warrants respect; every form of life is unique and is to be safeguarded independent of its value to humanity." 46
In addition, as discussed in the section on environmental human rights, some of the Draft Principles have an ecocentric tone, referring to nature and the need to protect nature for nature's sake. In addition, article 21 establishes a duty on humans to protect the environment which may be considered an example of an ecological limitation. This follows from Bosselman and Taylor's explanation that one technique for limiting human rights is to prescribing a right together with a duty.47
Finally, some of the cases discussed under the contextual approach could also be seen as establishing ecological limits on human rights. For the manner in which Bosselman conceives such limits (by the addition of the phrase "respect for the intrinsic value of life" to the phrasing of existing rights) does not seem that different the method of the contextual approach. Raither the difference lies in what content should be added to existing rights and what rights are involved. Ecological limitations touch on different human rights than the contextual approach. The contextual approach has involved the right to life, health and privacy, whereas ecological limitations approach would likely deal more with the right to property, development, sustainable development and self-determination.48 Conceivably, there could even be a ecological limit on a human right to the environment.
After setting out the various approaches and evidence supporting them, this paper will now assess which approach can most strongly claim to have the support of international human rights law. Such an assessment must evaluate the evidence in terms of the four generally accepted sources of international law as set out in article 38 of the International Court of Justice: international conventions, international custom, general principles of the law of civilized nations, and judicial decisions and the writings of qualified publicists.49 For reasons of scope, this paper will not address evidence of a general principle of law but it should be noted that many national constitutions contain a right to an environment or duty to protect the environment, and some take an ecocentric approach.50
The contextual approach has not been set out in any binding international convention and it is the least advocated by the writers reviewed for purposes of this paper. However, it seems to the approach most favored by international tribunals -- namely the International Court of Justice (although there are indications that this may soon change) and the U.N. Human Rights Committee. Also the European Court of Human Rights used the contextual approach; contrasting with the environmental human rights adopted in the Americas and Africa.51 While international law does not accept the doctrine of stare decisis,52 the decisions of the the International Court of Justice, the European Court of Human Rights, and Court of Justice of the European Union, are considered in practice.53 Thus an argument can be made that such an approach to human rights is current.
The environmental human rights approach has produced the most scholarly writings and the most non-binding documents. While it has been accepted that environmental human rights are valid at the regional level, the body of declarations, drafts, and reports does not represent the amount of consistent state practice carried out with a sense of obligation (opinio juris) required for environmental human rights to be considered customary international law. However, it does shows that such a human right is evolving and may soon achieve the status of international law, either through a convention or custom.
The evidence points to some state practice supporting the ecological approach, but it is not sufficient to qualify as customary international law. There is scholarly writing supporting such an approach but it is not as voluminous as that supporting the environmental human rights approach. In addition, there is no binding international human rights document expressing the ecological approach, only illusion to it in the Draft Principles.
As the above analysis demonstrates something is happening in human rights law; an evolution is occurring. In particular, international human rights law will likely soon express its view of the relationship between human rights and the environment and most likely in the direction of a independent human right to the environment. Due to increasing recognition of the link between the well-being man and the well-being of the natural environment, international human rights law is expanding its purpose from human protection to environmental protection.