MEA compliance mechanisms and human rights

Major global human rights treaties were drafted and adopted long before environ-mental conservation processes and MEAs had gained momentum as international issues and mechanisms. In 1972, Principle 1 of the Stockholm Declaration of the UN Conference on the Human Environment marked the advent of recognizing

linkages between human well-being and the environment by declaring 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…’. In this regard, all human beings bear a solemn responsibility to protect and improve the environment for the benefit of present and future generations, including through compliance with the existing environmental policies, instruments and legal regimes.

By 2030, the world is determined to ensure that all human beings can fulfill their potential in dignity and equality and in a healthy environment.²⁴³ Whereas the right to a safe and healthy environment is not a de facto universal human right, human health is presently a central pillar in the enjoyment and realization of all human rights, and structures for the realization of these rights can be found in various international instruments. The notable instruments include, inter alia, the 1966 International Covenant on Economic, Social and Cultural Rights;²⁴⁴ the 1989 Con-vention on the Rights of the Child;²⁴⁵ the 1981 African Charter on Human and Peoples Rights;²⁴⁶ and the 1988 Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights.²⁴⁷

While few MEAs make explicit reference to human rights (examples of those that do include the Paris Agreement and the preamble to the Basel Waste Convention), most MEAs (including the Basel Waste Convention, Cartagena Biosafety Protocol, Minamata Mercury Convention, Rotterdam PIC Convention, Stockholm POPs Convention, Vienna Ozone Convention, Convention on Climate Change, Kyo-to ProKyo-tocol, and Montreal ProKyo-tocol) nevertheless recognize the linkages between a healthy environment and the enjoyment of fundamental human rights, including rights to health and wellbeing, food, water and sanitation. Human Rights Council Resolution 31/8 (2016) on human rights and the environment,²⁴⁸ inter alia, calls upon states to ‘respect, protect and fulfil human rights, including in actions relating to environmental challenges; and implement fully their obligations to respect and ensure human rights without distinction of any kind, including in the application of environmental laws and policies’.²⁴⁹ The recognition by MEAs and other interna-tional instruments of the importance of a healthy environment for human wellbeing and development is a good starting point for understanding and enhancing the development and respect for human rights within the multilateral environmental

243 UNGA Res. 70/1.

244 International Covenant on Economic, Social and Cultural Rights, New York, 16 December 1966, in force 3 January 1976, 993 United Nations Treaty Series 3.

245 Convention on the Rights of the Child, New York, 20 November 1989, in force 2 September 1990, 28 International Legal Materials 1456.

246 African Charter on Human and People’s Rights, Nairobi, 27 June 1981, in force 21 October 1986, 21 International Legal Materials 58.

247 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.

248 Human Rights Council Res. 31/8 of 23 March 2016, available at <https://documents-dds-ny.un.org/

doc/UNDOC/GEN/G16/084/79/PDF/G1608479.pdf?OpenElement> (visited 28 August 2017).

249 Ibid. at 2.

system. Most MEAs recognize, and often describe, the effect of environmental harm on human beings or the impact of human activities on the environment. They also place obligations upon Parties to prevent such harm.

Whereas the preference for addressing human rights in isolation from environmen-tal issues or vice versa has long been dominant, the first report of the Independ-ent Expert on the issue of human rights obligations relating to the enjoymIndepend-ent of a safe, clean, healthy and sustainable environment concluded that injecting and mainstreaming human rights issues into environmental issues and vice versa would be mutually beneficial to a broad range of human rights or environmental issues.²⁵⁰ This paper surmises that interlinkages would also enhance the compliance regimes of both environmental and human rights agreements. Were this approach to be taken, compliance mechanisms designed to protect human rights would help to supplement compliance mechanisms for environmental agreements.²⁵¹

A number of MEAs and policies have incorporated and endorsed procedural envi-ronmental rights, and some have included provisions or procedures regarding civil liability and compensation for damage caused by environmental degradation, par-ticularly in the context of environmental pollution.²⁵² All MEAs and most related international resolutions and declarations elucidate certain aspects of the nexus be-tween human rights and the environment. The Rio Declaration,²⁵³ for instance, em-phasizes the need to integrate the environment into development in order to achieve sustainable development and allow for the full enjoyment of a healthy and pro-ductive life in harmony with nature. MEAs have also illustrated an understanding that the rights to access to information and public participation in decision-making proceedings, and access to review procedures and remedies are closely linked. When people are able to learn about, and participate in, the decisions that affect them, they can help to ensure that those decisions contribute to compliance with MEAs and human rights agreements for a sustainable environment.²⁵⁴ 

250 Human Rights Council, ‘Preliminary Report of the Independent Expert on the issue of human rights ob-ligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox’, Twenty-second session, December 2012, available at <https://documents-dds-ny.un.org/doc/UNDOC/

GEN/G12/189/72/PDF/G1218972.pdf?OpenElement> (visited 28 August 2017) at 4-5.

251 Human Rights Council, Special Rapporteur on human rights and the environment (the former Inde-pendent Expert on human rights and the environment), available at <http://www.ohchr.org/EN/Issues/

Environment/SREnvironment/Pages/SRenvironmentIndex.aspx> (visited 1 June 2017).

252 Basel Protocol on Liability and Compensation; Principle 10 of the Rio Declaration on Environment and Development (1992); Article 21 of the Legal Principles for Environmental Protection and Sustainable Development Adopted by the World Commission on Environment and Development Experts Group on Environmental Law, available at <http://www.un-documents.net/ocf-a1.htm> (visited 10 September 2017); Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, 25 June 1998, in force 30 October 2001, 38 International Le-gal Materials (1999) 517, <http://www.unece.org/env/pp/>; Protocol on Water and Health to the Con-vention on the Protection and Use of Transboundary Watercourses and International Lakes, London, 17 June 1999, in force 4 August 2005, <http://www.unece.org/env/water/pwh_text/text_protocol.html>

(visited 30 June 2017).

253 Rio Declaration on Environment and Development.

254 Special Rapporteur on human rights and the environment, supra note 251.

Compliance mechanisms under existing MEAs are limited in scope in comparison to compliance mechanisms in the international human rights regime. Most MEA compliance mechanisms only accept submissions from Parties about their own compliance and non-compliance or against another Party. Individual persons’ or non-governmental organizations’ complaints on non-compliance are not allowed under many environmental agreements. However, the Aarhus Convention on Ac-cess to Information, Public Participation in Decision-making and AcAc-cess to Justice in Environmental Issues (Aarhus Convention)²⁵⁵ allows the public to submit com-munications on non-compliance. In addition, the Aarhus Convention’s Protocol on Pollutant Release and Transfer Registers (the Kyiv Protocol)²⁵⁶ has effectively put Principle 10 of the Rio Declaration in practice.²⁵⁷ The efforts to allow the public to bring non-compliance issues to the attention of the Aarhus Convention Com-pliance Committee have also been replicated in the Protocol on Water and Health to the Convention on the Protection and Use of the Transboundary Watercourses and International Lakes.²⁵⁸ The cooperative approaches to compliance with environ-mental and human rights agreements can be an effective means of enhancing Parties’

response to climate change, biodiversity loss and environmental pollution among other global environmental and human rights issues.

6.3 MEA compliance mechanisms, international trade, customs and border