Third Generation Rights – Green Rights

305 THIRD GENERATION RIGHTS GREEN RIGHTS Qaisar Zaman Advocate, Lahore Published in: Corporate Law Decisions Year of Publication: 2011 Suggested Citation: 2011 CLD Journal Section p.43 A clear-cut and authoritative definition for the term environmental rights does not exist. Birnie and Boyle define environmental human rights as: 'terminology used to ascribe value or status to the interests and claims of particular entities. Churchill defines the term broadly as the right of an individual or group to a decent environment that extends beyond what is judicially enforceable but limited to genuine rights as they are found in existing human rights treaties.1 Environmental right is the term used to describe both existing human rights with environmental implications (or derivative rights) and the emerging right to a clean and healthy environment. The interconnectedness of environmental issues and human rights is, however, conspicuous. But it is crystal clear that human rights violations lead to environmental degradation and environmental degradation leads to human rights violations . The term environmental rights is used quite often in contemporary literature on sustainable development to describe the human rights aspect of this very principle, or, as stated in the preamble of the Draft Declaration on Human rights and the Environment: sustainable development links (Cit. p.44) the right to development and the right to a secure, healthy and ecologically sound environment .2 According to Hill, Wolfson and Targ now-a-days a repeated recognition of a rights-based approach to environmental protection exists. Such recognition demonstrates that a right to a clean and healthy environment, whether as a separate, codified right or as the result of repeated application of other human rights to environmental harms, has become an international legal norm .3 The currently existing human rights instruments contain several provisions with environmental implications. Certain provisions from human rights instruments might not have been drafted for environmental purposes, but the terms and wording of these provisions are abstract enough for interpretation by judicial bodies. Now-a-days there seems to be consensus on the green possibilities of some human rights provisions. The most cited are the right to life, the right to property, right to health and other basic procedural and democratic rights. It is obvious that the violation of these rights in turn results in destruction of local environment and as a consequence cause harm to local communities and the landscape by way of landslides, drought, erosion, flooding, and (more) fires. The most serious and direct threat from degradation of environment is acid rain, poor air quality, poorer visibility, polluted water and eroded soil etc. The effects are both local and regional and are suffered by all: men, women, children, migrant workers and indigenous peoples. Global Developments and Soft-Law There are various international conventions wherein the green rights have been safeguarded over a few decades. Those are as under:-- UN s Stockholm Conference, World Charter for Nature, Rio Declaration (UNECD)/Earth Summit, Agenda 2, Earth Charter, (Cit. p.45) 1985 Vienna Convention on the Protection of the Ozone Layer, 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, 1992 UN Framework Convention on Climate Change, Koyoto Protocol, 1971 Convention on Wetlands of International Importance, 1972 Convention on Protection of the World Cultural and Natural Heritage, 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1979 Convention on the Conservation of Migratory Species of Wild Animals, 1992 Convention on Biological Diversity etc. These are protected by the UNEP, IUCN etc. and the ICJ. The Rio Declaration on Environment and Development 1992, the United Nations Draft Principles on Human Rights and the Environment and the Plan of action as adopted by the 2002 Johannesburg Summit on Sustainable Development all place more and more emphasis on human rights to a clean and healthy environment. A specific human right to a clean environment does not currently exist. Environmental rights are, however, emerging but what is the status of these environmental rights, a global endeavor or enforceable hard law? It seems safe to endorse the conclusion by Hill, Wolfson and Targ: One thing that can be said for sure is that internationally, the right to a clean and healthy environment has not reached the enforceable "hard law" stage as yet .4 Sustainable development has however become the core of international environmental policy . The above-(Cit. p.46) mentioned instruments and their respective provisions are believed to be capable of immediate implementation by human rights bodies through existing rights to life, health, development and procedural rights of due process, public participation and access to effective remedies . Right to Life and Health- Global Judicial Scenario Chile In Chile, in the case of Juan Pablo Orrego Silva et al. v. Empresa Electrica Pangue S.A. the plaintiffs opposed the construction of the Biobio dam, alleging that water shortages and flooding would adversely affect the right to life of the local communities. The court agreed with the stance of plaintiff. Argentina In the Argentinean case Bustos Miguel y Otros v. Direccion de Fabricas Militares, the Court stated in 1986: It is obvious that environmental harm finds legal coverage in positive law because it prejudices life, health and the psychological and physical integrity of those who (are affected by) polluting substances Later on, in the 1993 case Margarita v. Copetro SA the court asserted that pollution arising from a coal burning industry, and particularly as a result of the cancerous substances that emanated from it, constituted a violation of the right to life, as recognized in the regional human rights instruments. This was before the right to the environment was recognised in the Argentinean Constitution. In the case Almada Hugo N. v. Copetro and others, the court considered that in situations of environmental pollution the rights to life and health are directly affected and threatened. And in Margarita v. Copetro SA, the Camara Civil y Comercial de La Plata stated that any change to the environment also has an impact on the quality of life. Peru A 1993 decision by the Peruvian Supreme Court concerning the protection of a mangrove area from coastal shrimp farming industries constitutes an important contribution to the definition of the right to a healthy (Cit. p.47) environment by incorporating the principle of sustainable development. Upholding the lower court s decision, the Court said that it was more profitable for the present and future development of the region to preserve and sustainably manage the mangroves rather than risk their depletion. The court ordered all shrimp farms in the mangrove area to suspend their operations and to restore them to their natural state. India In M.C. Mehta case, it was invoked to prevent construction within one kilometre of two lakes located near Delhi and same was decided. Thereafter, in the Taj Trapezium Case, the Supreme Court ordered a number of industries in the area surrounding the Taj Mahal to relocate or introduce pollution abatement measures in order to protect the Taj Mahal from deterioration and damage. Following the decision of Vellore Citizen s Case and Indian Council for Enviro-Legal Action Case, the Supreme Court described the PP (Precautionary principle) as environmental measures which must anticipate, prevent and attack the causes of environmental degradation. In S. Jagannath case, the precautionary approach was relied on to curtail commercial shrimp farming in India s coastal areas. The commercial user of agriculture lands and salt farms were discharging highly polluting effluents, and causing pollution of water. Normal traditional life and vocational activities of the local population of the coastal areas were being seriously hampered. In M.C. Mehta (Tanneries) case, http://www.unhchr.ch/environment/bp4.html - _ftn100the Court ordered to relocate 550 polluting tanneries operating in Calcutta. Pakistan Green rights are also protected by the following Pakistani laws:-- Articles 9, 14, 25 and 142 of Constitution of Pakistan, 1973 Pakistan Environmental Protection Act, 1997 (PEPA) Article 9 of the Constitution of Pakistan states that no person shall be deprived of life or liberties save in accordance with the law. The Supreme Court in Shehla Zia s5 case (Cit. p.48) decided that the Article 9 includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally . The petitioner questioned whether, under Article 9 of the Constitution, citizens were entitled to protection of law from being exposed to hazards of electro-magnetic field or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. In this case Salem Akhtar, J. commented that Under our Constitution, Article 14 provides that the dignity of man and subject to law, the privacy of home shall be inviolable. The fundamental right to preserve and protect the dignity of man and right to life are guaranteed under Article 9. If both are read together, question will arise whether a person can be said to have dignity of man if his right to life is below bare necessity line without proper food, clothing, shelter, education, health care, clean atmosphere and unpolluted environment. The Pakistan Law Commission Case6, a human rights case, dealt with the meaning of Article 9 of the Constitution. The Supreme Court of Pakistan held that: Article 9 of the Constitution which guarantees life and liberty according to law is not to be construed in a restricted and pedantic manner. Life has a larger concept which includes the right of enjoyment of life, maintaining adequate level of living for full enjoyment of freedom and rights. In another human rights case against cigarette companies7, the petitioner sought a ban on cigarette commercials on television. In his view, the western companies were unable to sell cigarettes in their own countries and they were aiming at the developing countries. He added that they were using the advertising to that end and this has resulted in catastrophic calamities in the form of cancer and heart disease. The Supreme Court stated that the citizen could get protection under Article 9 because right to life includes quality of life as well. Article 9 was explained again in the Salt Miners Case where the petitioner sought to enforce the right of the (Cit. p.49) residents to have clear and unpolluted water. They contended that if the miners were allowed to continue their activities, which were extended in the water catchment area, the watercourse, reservoir and the pipelines would get contaminated. The Court held in favour of the petitioner and said that if the water becomes contaminated, it would cause serious threat to human existence and the general public would be under serious threat. The Court gave a broad meaning to the word life and stated that:-- The word life .cannot be restricted to a vegetative life or mere animal existence. In hilly area where access to water is scarce, difficult or limited, the right to have water free from pollution and contamination is a right to life itself. This does not mean persons residing in another part of the country where water is in abundance, do not have such right. The right to have unpolluted water is the right to every person wherever he lives. In Environment Pollution in Balochistan case, the Supreme Court took account of a news item which contained that certain businessmen were planning to purchase coastal areas of Balochistan, a province in Pakistan, and turn the area into a dumping grounds for waste material. The authorities were ordered by the court to insert a clause in the allotment letter/licence/lease that the allotee or the tenants shall not use the land for dumping, treating, burying or destroying by any devise, waste of any nature including industrial or nuclear waste in any form. 2.4 Right to Equality Article 25 of the Constitution of Pakistan deals with right to equality. It states that all citizens are equal before law and are entitled to equal protection of law and that there shall be no discrimination on the basis of sex alone. The Constitution of Bangladesh provides similar rights to the citizens. Article 27 provides that all citizens are equal before the law and are entitled to equal protection of law. The principle requires that no person or class of persons shall be denied the same protection of law which is enjoyed by other persons in like circumstances in their lives, liberty and property and pursuit of happiness. Right to equality along with the right to life can guarantee the right to a healthy environment. (Cit. p.50) The Constitution of India and Bangladesh provides that all are equal before the law and shall be accorded equal protection of the law. Equality before law means that, among equals, law shall be equal and shall be equally administered. Equal protection of law means that all persons in like circumstances shall be treated alike and no discrimination shall be made in conferment or imposition of liabilities. According to the Indian Constitution, Article 14 states that: The State shall not deny to any person equality before the law or the equal protection before the laws within the territory of India. If Article 14 is infringed, it can have an impact on the environment and human rights. The urban environmental group frequently takes resort to Article 14 to quash arbitrary municipal permissions for construction that are contrary to development regulations. Article 14 can be used to challenge government sanctions for mining and other activities with high human rights and environmental impact, where the permissions are arbitrarily granted without adequate consideration of environmental impacts. The right to equality before the law does not require that all persons must be treated exactly the same way. What is required is that the justification for differentiation must be legitimate. So far, in Pakistan, it is needed to strengthen the application of this fundamental right for the protection of environmental human rights. Proposals or views There are certain humble suggestions regarding future developments in order to safeguard the green rights. To enhance public awareness at large, especially in the corporate sector, of the environmental rights and protection. To ensure that persons promoting the protection of environment rights are not penalized, persecuted or harassed for their activities that are within the legal boundaries of a Pakistan. There is dire need to adopt new instruments, mechanisms and procedures to implement environmental principles in the society. To affirm the link between human rights and environmental protection as an essential tool in the (Cit. p.51) eradication of poverty and the achievement of sustainable development. Legal techniques and such other concepts can be instrumental to treat economic, environmental and human rights norms in an integrated manner. To support the growing recognition of a right to a secure, healthy and ecologically sound environment, either as a constitutionally guaranteed entitlement/ right or as a guiding principle of national and international law. Developing arrangements for assisting capacity-building (including technical cooperation) to promote an integrated approach to human rights and environmental protection. Promoting programmes to sensitize decision makers, including public officials, legislators and members of the judiciary, as to the need to develop a sense of commitment to the protection of human and environmental rights and to adopt more holistic approaches to integrate the requirements of sustainable development in the interpretation and application of national and international norms for the protection of those rights and sustainable development concepts. Enhancing mechanisms for receiving and addressing citizen s complaints in the field of environment. There is significant need for metamorphosis of mass psychology and thorough overhauling of education system for imparting basic environmental education on large scale. Save the planet, because we have nowhere else to go to. ---------- 1 A.E. Boyle & M.R. Anderson (eds.), Human rights approaches to environmental protection, p. 89 2 UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment, Final Report of the Special Rapporteur (Mrs. Ksentini), UN Doc. E/CN.4/Sub.2/1994/9 (6 July 1994) 3 <http://www.earthjustice.org/regional/international/ 2002%20issue%20paper-develop-mentsfinal.pdf, p.5>. 4 B.E. Hill, S. Wolfson, N.Targ, Human rights and the environment: a synopsis and some predictions, Geo. Int l. Envrtl. L. Rev. Spring (2004) [hereinafter Hill et al.] p.32. 5 (Shehla Zia v. WAPDA, PLD 1994 SC 693) 6 (The Employees of the Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548.) 7 (Amanullah Khan v. Chairman, Medical Research Council 1995 SCMR 202. See also, Pakistan Chest Foundation v. Government of Pakistan (1997 CLC 1379)