Like international human rights treaties, regional human rights treaties have played an instrumental role in linking human rights. Human rights protected in region-al human rights treaties have been used instrumentregion-ally to achieve environmentregion-al outcomes. Similarly, key regional treaties have expressly recognized environmental procedural rights and a substantive right to a clean and healthy environment. This section analyzes how these developments have contributed to the convergence of human rights law and environmental law at the regional level.
The earliest regional human rights instrument is the European Convention on Hu-man Rights (ECHR)67 which was concluded in 1950. The Convention contains no direct provisions on environmental rights. However, the European Court on Human Rights68 has interpreted the Convention to imply environmental rights.
Several cases emanating from the Court show how the right to private life, or the right to life, can be used to compel governments to regulate environmental risks, enforce environmental laws, or disclose environmental information. Examples in-clude the Guerra case69 (right to respect for private and family life); the Lopez Ostra case70 (right to respect for private and family life); the Öneryildiz case71 (right to life); the Fadeyeva case72 (right to respect for private and family life); the Budayeva case73 (right to life); and the Tatar case74 (right to respect for private and family life).
Although protection of the environment is a legitimate objective that can justify governments limiting certain rights including the right to possessions and property,
66 Alan Boyle, ‘Human Rights and the Environment: Where Next?’, 23 European Journal of International Law (2012) 613-642.
67 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, in force 3 September 1953.
68 See <https://www.echr.coe.int>
69 Guerra and Others v. Italy, Judgment of the European Court of Human Rights No. 116/1996/735/932 (19 February 1998).
70 Lopez Ostra v. Spain, European Court of Human Rights App. No. 16798/90, Judgment of 9 December 1994.
71 Oneryildiz v. Turkey, European Court of Human Rights App. No. 48939/99, Judgment of 30 November 2004.
72 Fadeeyva v. Russia, European Court of Human Rights App. No. 55723/00, Judgment of 9 June 2005.
73 Budayeva and Others v. Russia, European Court of Human Rights App. Nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, Judgment of 20 March 2008.
74 Tatar v. Romania, European Court of Human Rights App. No. 67021/01, Judgment of 17 March 2009.
Environmental Protection in International Law
human rights law does not protect the environment per se. Rather, it is an indirect way of achieving environmental objectives.75
In the Americas, the relevant human rights instruments are the 1969 American Con-vention on Human Rights76 and the 1988 San Salvador Protocol to the American Convention on Human Rights.77 Article 26 of the Convention mentions economic, social and cultural rights but contains no direct reference to the environment. Arti-cles 4 and 5 guarantee the right to life and personal integrity. The relationship be-tween the human rights contained in the two instruments and the environment was recently clarified through an Advisory opinion issued by the Inter-American Court of Human Rights78 at the request of Republic of Columbia.79 Specifically, the Court clarified what environmental obligations states have within the American Conven-tion human rights system. The Court clarified that the right to a clean and healthy environment is expressly recognized in Article 11(1) of San Salvador Protocol. Even then, Article 26 of the American Convention on Human Rights, which deals with social, economic and cultural rights, incorporates a right to a clean and healthy environment. It went further to state that the right to life and personal integrity recognized under the Convention creates obligations in relation to the environment.
According to the Court, the obligations embodied therein include obligations to:
prevent significant environmental damage, comply with the precautionary principle, cooperate in good faith, provide information, facilitate public participation and ac-cess to justice.80 The extrapolation of environmental obligations from human rights treaties in this way points to the fact that human rights concerns and environmental concerns do not occupy two distinct spheres. They converge in a mutually-affirming manner to advance the protection of human well-being of the environment.
The instrumental use of human rights law to achieve environmental objectives can be observed in the Inter-American context in the same way that similar rights have worked in the European context. However, the situation in the Americas differs from the European context because the San Salvador Protocol specifically recognizes the right to a quality environment and a corresponding duty on Parties to the Pro-tocol. Article 11(1) states that ‘[e]veryone shall have the right to live in a healthy environment and to have access to basic public services.’ Article 1(2) obligates Par-ties to ‘promote the protection, preservation, and improvement of the environment.’
75 Boyle, ‘Human Rights and’, supra note 66.
76 American Convention on Human Rights, San José, 22 November 1969, in force 18 July 1978, <https://
treaties.un.org/doc/Publication/UNTS/Volume%201144/volume-1144-I-17955-English.pdf> (visited 28 October 2019).
77 Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, San Salvador, 17 November 1988, in force 16 November 1999, 28 International Legal Materials 156.
78 See <http://www.corteidh.or.cr/index-en.cfm>.
79 The Inter-American Court of Human Rights Advisory Opinion OC-23/17. A discussion of the Ad-visory Opinion in English can be viewed at <https://www.escr-net.org/caselaw/2019/adAd-visory-opin- <https://www.escr-net.org/caselaw/2019/advisory-opin-ion-oc-2317> (visited 28 October 2019).
80 Inter-American Court of Justice, Advisory Opinion c-23/17of 15 November 2017.
One of the main weakness of the San Salvador Protocol relates to the lack of an effective enforcement mechanism for the right to a clean and healthy environment.
Specifically, under the Inter-American human rights system, the right to a clean and healthy environment does not provide a legal basis on which a direct individual petition against state Parties can be made before the Commission81 or the Court.
Nonetheless, violations of the right have been addressed indirectly through petitions that allege violations of the rights recognized in the Convention such as the right to life, the right to property, the right to prior and informed consent in the context of environmental pollution or economic exploitation of environmental resources.82 In addition to providing norms that are useful to achieving environmental objec-tives, regional human rights instruments have contributed to the convergence of human rights law and environmental law by recognizing stand-alone environmental rights and the human right to a clean and healthy environment. The 1981 African Charter on Human and Peoples’ Rights83 is the first regional human rights instru-ment to recognize a human right to a clean and healthy environinstru-ment. Article 24 of the Charter provides that ‘[a]ll peoples shall have the right to a general satis-factory environment, favorable to their development’. Noteworthy is the fact that the Charter makes a link between a satisfactory environment and development.
Development could encompass social, cultural and economic wellbeing. This nexus demonstrates that achieving environmental objectives cannot be considered in iso-lation from the goals served by social, economic and cultural rights.84 Application of the right in the SERAC v Nigeria85 case demonstrated that the right contemplated in the Charter is an expansive one, encompassing substantive and procedural elements.
Specifically, though procedural rights are not explicitly provided for under Article 24, the Human Rights Commission read them into the Charter. It ordered the Ni-gerian government to: investigate human rights violations and prosecute officials of the security forces and officials of the Nigerian National Petroleum Company; make adequate compensation to the victims, including relief and resettlement assistance, and undertake a cleanup of land and rivers polluted and damaged by the activities of the oil operations; take measures to ensure that appropriate environmental and social impact assessments are undertaken in case of future oil development activities, and, properly inform the people about possible health and environmental risks.86
81 See <https://www.oas.org/en/iachr/>.
82 Riccardo Pavoni, ‘Environmental Jurisprudence of the European and Inter-American Courts of Human Rights: Comparative Insights’ in Ben Boer (ed.), The Environmental Dimension of Human Rights (Oxford University Press, 2015) 69-106, at 71; and Sophie Thériault, ‘Environmental justice and the Inter-Amer-ican Court of Human Rights’ in Anna Grear and Louis Kotzé (eds), Research Handbook on Human Rights and the Environment (Edward Elgar Publishing, 2015) 309-329.
83 African Charter on Human and People’s Rights, Nairobi, 27 June 1981, in force 21 October 1986, 21 International Legal Materials 58.
84 Werner Scholtz, ‘Human Rights and the Environment in the African Union Context’ in Grear and Kot-zé, Research Handbook on Human, supra note 82, 401-422.
85 African Commission on Human Rights and Peoples’ Rights, Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR) v. Nigeria, Communication No. 155/96, 2001 (‘Ogoni case’).
86 Ibid.
Environmental Protection in International Law
The 2012 ASEAN Declaration on Human Rights87 was adopted by the heads of the ten ASEAN member countries in 2012. It is considered a landmark in the de-velopment of human rights protection for the citizens of these countries. Article 28 includes reference to many of the rights recognized in other regions such as Europe, Africa and Latin America as being the basis for using human rights to achieve broader environmental aims. Article 28 sets out the right to an adequate standard of living which includes the right to food, clothing, affordable housing, medical care and so-cial services, safe drinking water and sanitation, and the right to a safe, clean and sus-tainable environment. As a declaration, this instrument is not normatively forceful compared to the other human rights instruments from Africa, Americas and Europe.
Nonetheless, it marks a milestone in the development of human rights and environ-mental rights. It recognizes rights whose relevance to protecting human well-being in the environmental context has been demonstrated. For instance, the right to safe drinking water and sanitation is not attainable in situations where environmental pollution is allowed to continue unchecked. The right to food may be compromized where farmlands are contaminated through toxic pollution. In addition to the pos-sibility of applying these social economic rights to advance environmental goals, the recognition of the right to a clean and healthy environment signifies a readiness on the part of member countries to fulfill negative and positive obligations.88
Regional environmental instruments have played a role in bridging human rights and environmental protection. In this respect, the Convention on Access to Infor-mation, Public Participation and Access to Justice (Aarhus Convention) and the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement) are of relevance. Adopted in 1997 within the UN Economic Commission for Eu-rope (UNECE),89 the Aarhus Convention was later opened for any state to join.
The Preamble to the Aarhus Convention asserts that ‘every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations’. While the Conven-tion endorses the right to live in an adequate environment, it fails to provide a legal basis for citizens directly to invoke this right. Instead, its focus is strictly procedural in content. It grants public rights regarding access to environmental information, public participation in decisions bearing on the environment and access to justice in environmental dispute settlement bodies. In so doing, the Convention gives life to Principle 10 of the 1992 Rio Declaration, in mandatory language to the same category of procedural rights.90
87 ASEAN Human Rights Declaration, Phnom Penh, 18 November 2012, <https://asean.org/asean-hu-man-rights-declaration/>.
88 See further, Ben Boer, ‘Environmental Law and Human Rights in the Asia-Pacific’ in Boer (ed), Environ-mental Dimensions of Human Rights (Oxford University Press, 2015) 135-179, at 153-155.
89 See <http://www.unece.org>.
90 See discussion in Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environ-ment (Oxford University Press, 2009) 273-275.
Despite its procedural focus, the Convention represents an important extension of environmental rights, but also of the corpus of human rights law.91 It has enabled human rights and environmental protection to interact. As Hey explains, inade-quate or improper protection of the environment may lead to violations of the rights protected by the European Convention of Human Rights. The procedural rights recognized in the Convention empower the public to advocate for adequate envi-ronmental protection measures and to challenge development and other activities that are harmful to the environment. In this sense, ECHR rights benefit from the procedural rights recognized in the Aarhus Convention.92
Concluded in 2018, the Escazú Agreement represents the latest development in regional human rights and environmental treaties. In terms of Article 1, the Agree-ment’s objective is
to guarantee the full and effective implementation in Latin America and the Caribbean of the rights of access to environmental information, public partic-ipation in the environmental decision-making process and access to justice in environmental matters, and the creation and strengthening of capacities and cooperation, contributing to the protection of the right of every person of pres-ent and future generations to live in a healthy environmpres-ent and to sustainable development.
Like the Aarhus Convention, the Escazú Agreement makes provisions for environ-mental procedural rights including the right of access to environenviron-mental informa-tion (Articles 5 and 6), the right of public participainforma-tion in the environmental deci-sion-making process (Article 7) and the right of access to justice in environmental matters (Article 8). In addition, the Agreement makes a ground-breaking contribu-tion to human rights law and environmental proteccontribu-tion by being the first instru-ment to protect the human rights of environinstru-mental defenders (Article 9).
The provisions highlighted above show that the Escazú Agreement is clearly both a human rights instrument and an environmental rights instrument. The combina-tion of the two subjects of regulacombina-tion indicates that convergence between human rights law and environmental law is taking place through the conclusion of instru-ments that encompass provisions from both fields of law to achieve the mutually dependent goals of protection of human well-being and the environment. That the Agreement is more than an environmental treaty in the style of the Aarhus Conven-tion is similarly evident from the fact that in addiConven-tion to guaranteeing procedural environmental rights, it ‘seeks to address the region’s most important challenges, namely the scourge of inequality and a deep-rooted culture of privilege …’ and con-templates a ‘shift towards a new development model’ that facilitates the inclusion of
91 Ibid. at 274.
92 Ellen Hey, ‘The Interaction Between Human Rights and the Environment in the European ‘Aarhus Space’’ in Grear and Kotzé, Research Handbook on Human, supra note 82, 353-376.
Environmental Protection in International Law
‘those that have been underrepresented, excluded or marginalized and give a voice to the voiceless, leaving no one behind.’93 By making a link between environmental protection and development, the Escazú Agreement follows the model set by the African Charter in which a nexus between environmental protection, a concern for which environmental rights exist, and development, a concern addressed by social and economic rights, is made.94