It is widely accepted that the satisfaction of basic human rights recognized in inter-national human rights instruments is pre-conditioned on a certain quality of the environment.57 This section highlights how the provisions of key international hu-man rights instruments interact with environmental protection. The UDHR, to-gether with the ICCPR and the ICESCR constitute the International Bill of Human Rights. The UDHR presents the earliest efforts by the international community
52 Article 2(3) provides that each Party to the Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, admin-istrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
53 Article 8 of the Aarhus Convention; Art. 8 of the Escazú Agreement.
54 Article 26 of the ICCPR.
55 Convention on the Rights of the Child, New York, 20 November 1989, in force 2 September 1990, 28 International Legal Materials 1456, Art. 2.
56 Convention on the Elimination of All Forms of Discrimination against Women, (New York, 18 Decem-ber 1979, in force 3 SeptemDecem-ber 1981, 1249 United Nations Treaty Series 18.
57 Sumudu Atapattu, ‘The Right to a Healthy Life or the Right to Die Polluted? The Emergence of a Hu-man Right to a Healthy Environment Under International Law’, 16 Tulane Environmental Law Journal (2002) 65-126; Donald K. Anton and Dinah L. Shelton (eds), Environmental Protection and Human Rights (Cambridge University Press, 2012) 130; Bridget Lewis, ‘Environmental Rights or a Right to the Environment? Exploring the Nexus Between Human Rights and Environmental Protection’, 8 Mac-quarie Journal of International and Comparative Environmental Law (2012) 36-47.
Environmental Protection in International Law
to foreground human wellbeing in the context of international relations between states. The Declaration came on the heels of the conclusion of World War II, which brought to light the fragility and limitations of national institutions to protect hu-man well-being. The UDHR consists of 30 articles which proclaim fundamental rights and freedoms meant to be enjoyed by ‘all members of the human family’.58 Though not a legally binding instrument, the rights and freedoms proclaimed in the UDHR are foundational to the ICCPR and the ICESR, which are binding on their signatories.
Of all the three instruments that constitute the International Bill of Human rights, only the ICESCR expressly mentions the environment. Article 12 recognizes the
‘improvement of all aspects of environmental and industrial hygiene’ as a condition to the fulfillment of the right to the highest standard of health. Though couched in the language of hygiene, this provision has important relevance to the environ-mental context. Environenviron-mental pollution leads to contamination of drinking water, air and living spaces leading to poor sanitation. Poor sanitation negatively impacts physical and mental well-being of the populations affected. Signatories of the ICE-SCR would rely on Article 12 to develop legislation to ensure the protection of the environment for the purpose of securing standards of hygiene that are compatible with holistic physical and mental well-being.
Despite the lack of a guarantee for a quality environment in the three instruments, the right to a clean and healthy environment can be said to have begun with the rec-ognition of the right to life in the UDHR and continued with the 1966 Covenants and subsequent hard and soft law international instruments. The foundational role of the right to life in environmental matters has been recognized in international law. In the case of Gabčíkovo-Nagymaros Project, decided by the International Court of Justice, Justice Weeramantry stated in his separate opinion:
The protection of the environment is likewise a vital part of contemporary hu-man rights doctrine, for it is a sine qua non for numerous huhu-man rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instru-ments.59
Elsewhere, the right to a quality environment has been described as ‘nothing less than the right to life itself.’60 The right of life is thus a powerful normative basis for establishing standards for preventing and remediating environmental damage that poses the risk of death to populations.
58 Preamble of the UDHR.
59 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, 7.
60 Hilario G. Davide Jr., ‘The Environment as Life Sources and the Writ of Kalikasan in the Philippines’, 29(2) Pace Environmental Law Journal (2012) 592-601.
Apart from protecting the right of human beings to live, the right to life is con-cerned with guaranteeing material conditions that are essential to support liveli-hoods as well. In this case, certain provisions of the three instruments reinforce the goal of the right to life in the environmental context. These are the right to adequate standards of living and the right to adequate standards of health. The UDHR in-directly recognizes these rights through the provisions of Article 25(1) which states that ‘everyone has the right to a standard of living adequate to his/her health and wellbeing and that of his/her family’. The proclamation found in the UDHR is further elaborated in Article 11 (adequate standards of living) and Article 12 (ade-quate standards of health) of the ICESCR. Ade(ade-quate standards of living are attained where citizens have access to adequate shelter, food and clothing. Securing the right to food and shelter can be the basis for disallowing unsustainable exploitation of natural resources which are meant to support livelihoods. Protection of the right to health, in particular, is linked to better environmental protection in the sense that human health thrives in an environment that is sanitary and free from pollutants that endanger human wellbeing.61
The right to equality and non-discrimination is essential to achieving a quality envi-ronment. This right is spelled out in the UDHR (Article 2) and the ICCPR (Article 26). In the recently published ‘Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment’, non-discrimination is included as part of an expansively formulated right to a clean and healthy environment.62 The right to non-discrim-ination has been replicated in other human rights instruments and subsequently has been relied on by marginalized groups such as indigenous peoples to challenge discriminatory government policies that negatively impact their right to utilize and conserve environmental resources.63
In addition to those rights that bear directly on the material well-being of humans in the environmental context, international human rights instruments have provided for civil and political rights that empower citizens to advocate for better environmen-tal conditions. Specifically, they are useful in protecting the environment in enabling raising awareness and autonomy; fostering public participation and empowerment;
61 Dinah Shelton, ‘Human Rights, Health and Environmental Protection: Linkages in Law and Practice’, 1 Human Rights and International Legal Discourse (2007) 9.
62 UN Human Rights Council, ‘Report of the Special Rapporteur on the Issue of Human Rights Obliga-tions Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Framework Principles, John H. Knox’, UN Doc. A/HRC/37/59 (2018).
63 For instance, African Commission on Human and Peoples’ Rights v. Republic of Kenya (2017). Members of the Ogiek community in Kenya relied on Article 2 of the African Charter on Human and Peoples’ Rights (Nairobi, 27 June 1981, in force 21 October 1986, 21 International Legal Materials 58) to challenge the government’s move to expel them from their ancestral lands in the Mau forest. The Court found that eviction of the Ogiek without consultation amounted violation of the right to non-discrimination recog-nized in Art. 2 of the Charter, among other rights.
Environmental Protection in International Law
and contributing to the legitimacy of governmental action.64 These rights include ICCPR’s right to political participation (Article 25), certain ‘liberty’ rights including right to information (Article 19) and association (Article 22). The right to political participation can be used to compel governments to facilitate the participation of communities in the environmental decision-making process. The right of access to information is a useful tool for compelling governments to disclose environmental information while the freedom of association provides the legal basis for citizens to organize both formally and informally in the furtherance of environmental goals.
Thematic international human rights instruments include the 1979 CEDAW and the 1989 CRC. The CEDAW does not directly recognize the right to a quality en-vironment. However, it contains two provisions that are relevant to environmental protection. Article 14(f) proclaims the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction. Ar-ticle 14(h) mandates state Parties to provide adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and com-munications. The relevance of the provisions of the CEDAW in the environmental context are hinged on the realization that pre-existing inequalities exacerbate the impact of environmental damage on women who are also least prepared to counter them owing to limited access to resources that enable resilience. The connection between forms of discrimination against women that the CEDAW seeks to redress and their disparate vulnerability to the consequences of environmental damage has taken centre stage in the discourse relating to how to mitigate the consequences of climate change.65
Like the CEDAW, the CRC makes no direct mention of the right to a quality en-vironment. but proclaims the right to the highest attainable standards of health in Article 24(1), which is relevant to the protection of children in the environmental context. In terms of Article 24(1)(c), the right to the highest attainable standards of health is to be achieved through measures aimed at combating ‘disease and mal-nutrition, …through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution…’ This provi-sion contemplates governmental responses similar to the kind enviprovi-sioned in similar-ly worded provisions in the ICESCR and CEDAW.
The foregoing analysis demonstrates that international human rights treaties have an instrumental role to play in bridging the conceptual divide between human rights law and environmental law. In particular, international human rights treaties have
64 James R. May, ‘Constitutional Directions in Procedural Environmental Rights’, 28 Journal of Environ-mental Law and Litigation (2013) 27-58.
65 Committee on the Elimination of Discrimination against Women, ‘General Recommendation No. 37:
Gender-related dimensions of disaster-risk reduction in the context of climate change’, UN Doc. CE-DAW/C/GC/37 (2018).
provided standards by which environmentally damaging conduct that results in harm to human wellbeing is assessed in order to formulate appropriate responses.
As such, convergence between the two legal regimes has evolved from the fact that protection of those human rights found in international human rights treaties re-dounds to the benefit of the environment. This approach is what Boyle has termed as greening of human rights.66