Should Environmental Rights Trump Human Rights? Essay

SHOULD ENVIRONMENTAL RIGHTS TRUMP HUMAN RIGHTS? This study aims to present the findings of research on the link between environmental rights and human rights. Rights are normative principles, meaning that in the context of law, they are viewed according to a valued position. However, values can be inconsistent with each other hence the reason why rights, and in this case, human and environmental rights, may come into conflict. Another justification for this is the “flexibility” of rights explained by Birnie and Boyle (2002) in that not only can they be extended but are also open-ended and therefore can trump other claims or values.

In a context where certain rights may have priority over others, should environmental rights trump human rights? During the conduct of this study, a number of points come up in order to build the arguments in an attempt to answer this question. The first point to be discussed will aim to understand the current status and the debate on environmental rights. There will also be an in-depth analysis of the link between environmental and human rights, presenting the similarities, differences and overlaps.

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Ultimately, the anthropocentricity of the right to a ‘clean and decent’ environment will be analysed within the framework of current debates and according to various studies as well as the shortcomings of human rights in addressing environmental concerns. The link between environmental and human rights Can one right trump another? There are several points with regards to the ability of one right to trump another. The metaphor of rights as “trumps” originated from Dworkin (1985).

This implies that certain rights have priority with respect to another. Rights are normative principles but from another point of view, a “specificationist” view, rights do not conflict and overlap in a given case. Whether rights are viewed as being “trumps”, thus conclusive or rather open, there are often links and overlaps between rights. According to Shue (1980), a right that is genuinely basic trumps those rights which may assist in the further development of human potential but which are not essential for basic unctioning in cases where the two kinds of rights conflict. Environmental rights and the links with human rights In order to understand discuss the priority of rights it is essential to highlight first of all the intricacy of the links between the two. To achieve this, examples will be used and the status of environmental rights will de defined as well as its relation to human rights. The links between the two subjects were apparent at least from the first international conference on the human environment, held in Stockholm in 1972.

At the Stockholm concluding session, the linkage was reflected in the preamble of the concluding declaration, wherein the participants proclaimed that: Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. . . . Both aspects of man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights –even the right to life itself (Shelton, 2009). Human rights and environmental rights are distinct

Human rights law aims to ensure the equal rights and fundamental freedoms of all human beings while environmental protection is concerned with broader issues of nature protection, which has intrinsic value irrespective of its utilization by or worth to human beings. For this reason, the focus or objective of human rights law and environmental law remains different to some degree (Sanjeev et al, 2003). There are also international environmental conventions which grant a right to information which are not human rights based e. g. 991 ESPOO Convention on Environmental Impact Assessment (EIA) (Fitzmaurice, 2009) and many characteristics have been used over the years in order to attempt to define environmental rights (Thorme, 2001). Despite this differentiation between the two, human rights law is more developed than environmental rights law. When human rights were established environmental degradation was not linked with human rights (Mesa, 2007). In addition, there are very few direct environmental rights. Nonetheless, two basic conceptions and or instruments of environmental rights exist in the current human rights system granting access to a clean environment.

The first is that the right to a healthy or adequate environment is itself a human right such as in Article 21 of the African Charter on Human and Peoples’ Rights and Article 11 of the San Salvador Protocol to the American Charter of Human Rights (Fitzmaurice, 2009). The second conception is the idea that environmental human rights can be derived from other human rights, usually – the right to life, the right to health, the right to private family life and the right to property (among many others).

This second theory is more commonly widespread in human rights, as those rights are already stated in many human rights documents. Environmental rights as human rights Environmental rights do not fit into any simple category or ‘generation’ of rights but can be viewed from at least three perspectives: civil and political rights, economic and social rights, collective or solidarity rights (peoples rather than individuals).

In civil and political rights Birnie and Boyle (2002) speak of a ‘greening’ of human rights, human rights commissions being able to adjudicate on rights concerned in response to complaints from individuals. The right to the environment in itself and by often definition can be perceived as a human right. The right to live in a healthy environment was stated as a basic human right in the United Nations Conference on the Human Environment (UNCHE) in Stockholm in 1972.

The Stockholm Declaration of 1972 was generally seen as the starting point of the modern international framework for environmental protection (UNEP, 2004). According Mesa (2007) it was then that the idea that an acceptable environment might constitute a precondition for the enjoyment of certain human rights emerged. The Principle 1 states that: “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”.

Just as human rights, environmental rights are perceived from an anthropocentric point of view in the Rio Declaration at the United Nations Conference on Environment and Development (UNCED) in 1992: “Human beings are at the centre of our concern for Sustainable Development. They are entitled to a healthy and productive life in harmony with nature”. Many human rights tribunals and experts take an approach similar to that of the Stockholm Declaration and understand environmental protection as a pre-condition to the enjoyment of several internationally-guaranteed human rights, especially the rights to life and health.

Environmental protection is thus seen as an essential instrument subsumed in or a prerequisite to the effort to secure the effective enjoyment of human rights (Sanjeev et al, 2003). Nonetheless, international environmental agreements, especially since 1992, more commonly consider certain human rights as essential elements to achieving environmental protection, mainly through procedural rights. This approach is well-illustrated by the Rio Declaration on Environment and Development, adopted at the conclusion of the 1992 Conference of Rio de Janeiro on Environment and Development.

Principle 10 formulates a link between human rights and environmental protection largely in procedural terms, declaring in Principle 10 that access to information, public participation and access to effective judicial and administrative proceedings, including redress and remedy, should be guaranteed because “environmental issues are best handled with the participation of all concerned citizens, at the relevant level. ” These procedural rights, contained in all human rights instruments, are thus adopted in environmental texts in order to have better environmental decision-making and enforcement.

Still other legal texts and authors proclaim the existence of a right to a safe and healthy environment as an independent substantive human right (Sanjeev et al, 2003). Environmental rights as constitutional rights Governmental action to protect the environment is one of the strongest arguments in favour of qualitative environmental rights (Birnie and Boyle, 2002). The right to the environment also constitutes a constitutional right. Are few examples are: •The Greek Constitution, 1975: Art. 4: “The protection of the natural and cultural environment constitutes a duty of the State” •The Spanish Constitution, 1978: Art. 45: “everyone has the right to enjoy an environment suitable for the development of the person as well as the duty to preserve it. •The Netherlands Constitution: Art. 21: “it shall be the concern of the authorities to keep the country habitable and to and to protect and improve the environment” According to Sanjeev et al (2003), all legal systems establish a hierarchy of norms.

Constitutional guarantees usually are at the apex and “trump” any conflicting norm of lower value. Thus, to include respect for the environment as a constitutional right ensures that it will be given precedence over other legal norms that are not constitutionally-based. International human rights: An adequate framework for environmental claims Human rights are more developed than environmental rights Despite the relevance of environmental rights, some argue that they can be extracted from existing human rights law without creating specific environmental rights (Birnie and Boyle, 2002).

For example, the European Convention guarantees everything a right to a healthy environment and also includes rights to access environmental information and public participation in decision-making processes. As Sanjeev et al (2009) suggest, as much of the work and documents produced attest, at the international level, that enforcement of human rights law is more developed than are the procedures of international environmental law. The availability of individual complaints procedures has given rise to extensive jurisprudence from which the specific obligations of states to rotect and preserve the environment are detailed. Some of the main rights from which environmental rights can be derived and outlined by Mesa (2007) are: 1. The right to life and the right to health: The human rights to life and to health are protected in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. Environmental rights are linked to the right to life, health, and to the State’s obligation to secure environmental protection.

The right to the protection of life and health are guaranteed under the most important international legal instruments. One of the main purposes of the UDHR is to promote better standards of living and therefore protect this fundamental right. The right to life, representing the most basic human rights doctrine, is an essential and non-derogable prerequisite to the enjoyment of all other rights. Environmental problems that endanger life —directly or indirectly— threaten this core right. The right to life “includes the right to enjoyment of pollution free water and air for full enjoyment of life”. In addition, article 12 of the 1996 U. N.

Convention on Economic, Social and Cultural Rights states that steps should be taken by the parties to the covenant to achieve a full realisation of the right to health which shall include those necessary for the improvement of all aspects of environmental hygiene (Thorme, 2001). 2. Right to dispose of the natural resources and information: According to Articles 1 and 2 of the ICCPR and ICESCR: “[A]ll peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law.

In no case may a people be deprived of its own means of subsistence”. All persons, without distinction, have the right to information concerning the environment. This includes information, on actions and courses of conduct that may affect the environment and information necessary to enable effective public participation in environmental decision-making. Despite the current status of environmental rights, there needs to be more reference to environmental matters. Human rights are insufficient in order to derive the necessary environmental rights and create a very anthropocentric view rather than an ecocentric view of environmental protection.

A less anthropocentric view would emphasise sustaining nature because of its inherent value and our consequent obligations to respect it. Species, biodiversity in general, ecosystems or the Earth itself are to be sustained. These views on what is to be sustained often invoke notions of ‘stewardship’, together with an implicit acceptance of the primacy of humans. More transformative versions articulate ‘natural rights’ in which earth and all its living things have equal claims for existence and sustenance (Sanjeev et al, 2003).

There are few explicit references to environmental matters in international human rights instruments, because most human rights treaties were drafted and adopted before environmental protection became a matter of international concern. The International Covenant on Economic, Social and Cultural Rights (IESCR, 16 Dec. 1966), contains a right to health in article 12 that expressly calls on states parties to take steps for “the improvement of all aspects of environmental and industrial hygiene. ”

The United Nations has not approved any general normative instrument on environmental rights, although the UN Human Rights Commission has had under consideration since 1994 a draft declaration on human rights and the environment. Nevertheless, as mentioned above, the Rio Declaration on Environment and Development proclaims that human beings “are entitled to a healthy and productive life in harmony with nature” (Principle 1) and provides that states should effectively cooperate to discourage or prevent the relocation and transfer to other states of any activities and substances that are found to be harmful to human health (Principle 14).

Yet, in the absence of a clear international text articulating the links between human rights and the environment, or even environmental rights specifically, the problems faced by courts when presented with human rights claims based on environmental harm are significant, at least when the government has made some effort to address the matter (Sanjeev et al, 2003).

The essence of environmental rights involves evaluating ecological systems, determining the impacts that can be tolerated and what is needed to maintain and protect the natural base on which life depends (Boyle, 2007). Environmental quality standards, precaution, and principles of sustainability can continue to give substance to environmental rights. In the years since 1994, the law on environmental rights has considerably advanced and a declaration could be drafted to reflect the state of the law as summarized above.

A declaration based on existing human rights and environmental law would bring together in a single instrument the many disparate strands referred to and thus provide essential guidance to governments, tribunals, and non-state actors whose activities impact both human rights and environmental protection. The primary hurdle is likely to be one of convincing critics that such a declaration would restate existing law and not be an exercise in extensive law-making (Sanjeev et al, 2003) Human rights protection only benefits victims of violation of convention rights.

If health, private life and others are not sufficiently affected by environmental loss then he or she has no standing to proceeed (Birnie and Boyle, 2002) and despite evolutionary character human rights law falls short of guaranteeing a right to a decent or satisfactory environment if that concept is understood in broader, essentially qualitative terms unrelated to impacts on specific humans. For instance, in Kyratos v Greece, the Court held that the destruction of the scenic beauty around a home did not amount to a human rights violation, and would be more appropriately considered in a forum dealing with general environmental concerns.

The U. N. Draft Principles on Human Rights and the Environment, even though they are not binding provide legal guide, considering that: “[A]ll persons have the right to a secure, healthy and ecological sound environment”. Subsequently, a case illustrating a successful regional example in which the Inter- American Commission on Human Rights recognized the right to a clean environment for the Yanomami Indians of Brazil40. The Inter-American Commission relied on this connection between environmental conditions and human health in the Yanomami case (1985).

The Commission found that environmental consequences of road construction in rainforest areas inhabited by indigenous people violated the right to health and wellbeing, citing in particular the following articles of the American Declaration of the Rights and Duties of Man: Article I (Right to Life, Liberty, and Personal Security); Article II (Right to Equality before the Law); Article III (Right to Religious Freedom and Worship); Article XI (Right to the Preservation of Health and to Well-being); Article XII (Right to Education); Article XVII (Right to Recognition of Juridical Personality and of Civil Rights); and Article XXIII (Right to Property). This case study shows one of the ways in which environmental rights are derived from human rights. Most cases of environmental protection involve the application of human rights such as the right to life, to health or to property in order to claim rights to a clean and decent environment.

There is yet to be more emphasis made on environmental protection from less of an anthropocentric point of view as well as in human rights law. REFERENCES Boyle A. , 2007, Human Rights or Environmental Rights? A Reassessment. pp 1-37. Available at: http://www. law. ed. ac. uk/file_download/publications/0_1221_humanrightsorenvironmentalrightsareasses. pdf Assessed April 20th, 2010 Birnie, P. , Boyle, A. , 2002, International law and the environment Dworkin, R. M. , 1985. Rights as Trumps. In Jeremy Waldron, ed. Theories of Rights Available at: http://www. blackwellpublishing. com/pdf/compass/PHCO_003. pdf Assessed: 13th May, 2010 Fitzmaurice, M. , 2009, Contemporary issues in international environmental law, pp 170-200 Mesa, R. S. 2007, Environmental Degradation and Human Ri ghts Abuses : Does the Refugee Convention confer protection to environmental refugees, International Law: Rev. Colomb. Derecho Int. 10: 75-130 Available at: http://www. javeriana. edu. co/Facultades/C_Juridicas/pub_rev/documents/03-RoccaSalcedo_001. pdf Assessed: April 21st, 2010 Sanjeev, K. , Clark, W. , and Raad, D. , 2003, From the Environment and Human Security to Sustainable Security and Development, Journal of Human Development,4(2): 289-313. Available at: http://www. hks. harvard. edu/sustsci/ists/docs/khagram_etal_jhd03. pdf Assessed: April 20th, 2010 Shelton D. , 2009, Human Rights and Environment: Past, Present and Future Linkages and the Value of a Declaration. http://www. unep. rg/environmentalgovernance/LinkClick. aspx? fileticket=vmj6UL3O5Ho%3D=2046=en-US Assessed: 21st April, 2010 Thorme, M. , 2001, Establishing environment as a human right, Denver Journal of International Law and Policy, 19:2, pp. 301-42 Shue, H. , 1980 Basic rights : subsistence, affluence, and U. S. foreign policy UNEP, 2004, Human Rights and the Environment: Proceedings of a Geneva Environment Network Roundtable. United Nations Programme for the Geneva Environment Network. www. environmenthouse. ch/… /reportsRoundtables/Human%20Rights%20Env%20Report. pdf. Assessed: 21st April, 2010 Cases: Kyratos v Greece [2003] ECHR 242, para 52


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