Recognition of the Right to a Healthy Environment

RECOGNITION OF THE RIGHT TO RECOGNITION OF THE RIGHT TO A HEALTHY ENVIRONMENT By Dr. Sajjad U. Hasan LLM (Nottingham), LLM (Punjab) Advocate Lahore The 1972 Stockholm Conference generated a great international document, namely, Stockholm Declaration that evolved right of an individual to a healthy environment.1 Growth of environmental legislation at the national as well as international levels got momentum from the Stockholm Conference2 and environmental protection became a matter of global concern. The 1992 Rio Conference was a great event concerning international environmental protection. It, inter alia, produced: the Rio Declaration containing 27 principles; and Agenda 21. Principle 1 of the Declaration states that a healthy life having harmonious relationship with the nature is a right of every individual. Agenda 21 is an action plan for environmental management to be undertaken in the 21st century.3 A UN Special Rapporteur studied link between human rights and environment and reported in 1994 the conclusion that human rights are dependent on environmental protection and environmental deterioration has deleterious effect on human rights. Similarly, while exploring interconnection between human rights and the environment, a UN expert group, in 2002, reached a conclusion that healthy environment is indispensable for enjoyment of human rights and both are interlinked.4 Recognition of the right at international level International organizations through treaties, declarations, resolutions, reports, opinions and judgments help in shaping this continually evolving right. International treaties Convention on the Rights of the Child Convention declares that to enjoy health is the right of every child and obligates States Parties for implementing this right by taking appropriate measures including prevention of contamination of environment.5 Basel Convention Convention regulates transport and disposal of hazardous wastes with the objective of protection of human health and environment. It establishes the right of every State to prohibit the entry or disposal of foreign hazardous wastes in its territory and declares that any wastes transported or disposed of in violation of the Convention will be considered illegal traffic in wastes creating criminal liability.6 Stockholm Convention on POPs Convention calls for lowering the production and use of persistent organic pollutants (POPs) with the objective of protection of public health and the environment from their highly deleterious actions.6 Recognition of the right at regional level Recognition at regional level has continued to advance an international right to a healthy environment. Europe Treaty of Rome The original treaty had no reference to word 'environment'. However, Article 130r was added to it in 1987 which states policy of the European Community to be to protect and improve environmental quality.7 Convention on Long-range Transboundary Air Pollution Convention provides a comprehensive framework to reduce toxic emissions for protecting human health and environment. Under the Convention, legally binding protocols have been adopted covering those air pollutants having the greatest impact on the public health and the environment like sulphur oxides (SOx), nitrogen oxides (NOx), etc.8 Maastricht Treaty The treaty declares that sustainable growth respecting environment would be the aim of European Union.7 European Court of Human Rights European Convention on Human Rights does not contain any article expressly recognizing the right to a healthy environment. Initial view of the Court was that environmental protection as a human right cannot be claimed under the Convention. This, however, changed when the Court started dealing with environmental matters under Article 8, i.e., right to privacy and under Article 1, i.e., right to property.5 The turning point in this regard was the Lopez Ostra case. (i) Lopez Ostra v. Spain9 A plant for treating tannery waste was established near the applicant's home releasing fumes and smell leading to public health problems. It was held that human well-being is seriously affected by pollution of environment which also has the effect of preventing him from enjoying the privacy of his home and family life. (ii) Guerra v. Italy9 Lopez Ostra was followed in this case. A factory was set up which released large amounts of toxic substances. Two complaints were made: failure to reduce pollution risks and to avoid major accidents; and failure to provide information about the risks. The Court held that interference with a person's physical well-being or quality of life constitutes a breach of Article 8. (iii) Hatton v. The United Kingdom (Heathrow Airport case)10 The Court held that noise from night flights contravened right to privacy and inviolability of home of people living in the neighbourhood of airport under Article 8 of Convention. Organization of American States (OAS) San Salvador Protocol Protocol acknowledges the right of each person to live in a clean environment and makes it a duty of the States Parties to improve environment.5 Organization of African Unity (OAU) African Charter on Human Rights Charter declares that healthy environment which is conducive to human development shall be the right of everyone.5 Recognition of the right at national level Recognition at national level is often found in national constitutions and judicial decisions. National constitutions Constitutions of many States either explicitly assure human right to a healthy environment or cast duty on States to protect the environment. Constitutional provisions relating to environmental protection from various jurisdictions are as under:11 (1) Argentina Constitution declares that clean environment is the right of all individuals. It obligates State to ensure rational utilization of natural resources, preserve cultural heritage, and provide environmental information and education. It further states that individuals have the duty to preserve the environment and damaging the environment generates the obligation to repair it. Moreover, it prohibits hazardous and radioactive wastes from entering the territory (Article 41). (2) Azerbaijan Republic Constitution proclaims that a clean environment is the right of each individual and he is entitled to compensation for any harm resulting from ecological crimes (Article 39). (3) Belgium Constitution proclaims that each individual shall have right to protection of a sound environment and to the cultural and social development (Article 23 (4, 5)). (4) Federative Republic of Brazil Constitution declares that a healthy environment is the right of each individual. It casts duty on State for protection and preservation of environment and obligates it for requiring EIA for projects which may have adverse environmental effect. It also states that acts tending to cause injury to environment shall expose violators to criminal and administrative sanctions, in addition to the obligation to repair the damage caused to the environment (Article 225). (5) Bulgaria Constitution proclaims that a favourable environment is the right of all individuals and they also have an obligation to protect it (Article 55). (6) Republic of Chile Constitution guarantees to everyone right to enjoy unpolluted environment and obligates State to protect it. It authorizes State to impose reasonable restrictions on some rights for the sake of protection of environment (Article 19). (7) Colombia Constitution declares that enjoyment of a pleasant environment is the right of each person and requires State to see its preservation (Article 79). It obligates State to regulate exploitation of natural resources to ensure it to be in a sustainable manner and to control environmental deterioration by imposing penalties (Article 80). It further provides that environmental protection is a public service for which the State is responsible and that shall develop programmes for environmental protection (Article 49). (8) Congo Constitution declares that clean environment shall be the right of every individual and obligates State to preserve it (Article 46). It holds those liable to compensation who cause environmental deterioration (Article 47). (9) Croatia Constitution proclaims that a healthy life is the right of each individual and in order to secure that, it obligates State to guarantee him a right to clean environment. It also binds different entities like NGOs, citizens and government to give priority to preservation of nature (Article 69). (10) Czech Republic In 1992, Charter of Fundamental Rights was promulgated as a component of constitutional order of the country. It proclaims that a clean environment is the right of each individual and prohibits people not to harm nature and ecosystems (Article 35). (11) Georgia Constitution proclaims that to enjoy clean and safe environment is the right of everyone and obligates State to assure protection of environment and rational exploitation of natural resources (Article 37). (12) Republic of Guatemala Constitution obligates the State and citizens to take steps for prevention of environmental pollution and to keep ecology in equilibrium. It authorizes the State to regulate exploitation of natural resources ensuring it to be in a rational manner (Article 97). (13) Cooperative Republic of Guyana Constitution establishes an obligation on the State to preserve natural resources and ensure their exploitation in a sustainable way. It further obligates the State to take all appropriate measures for improving environment (Article 36). (14) Republic of Hungary Constitution proclaims that the Republic recognizes clean environment as a right of each individual (Article 18). It obligates State to realize right to health by improving quality of environment (Article 70/D). (15) India Constitution directs State to endeavour for improving environment and protecting forests and wildlife (Article 48A). It casts duty on each person for preserving nature (Article 51A(g)). (16) Indonesia Constitution authorizes State to regulate exploitation of land and natural resources to ensure it to be equitable and sustainable (Article 33 (Section 3)). (17) Kazakhstan Constitution imposes obligation on the State to take appropriate measures for protecting environment in the benefit of human health. It holds the public functionaries answerable for concealing any fact that could threaten human life and health (Article 31). (18) Republic of Korea Constitution declares that a pleasant environment is the right of every individual. It casts duty on the State and all citizens to endeavour to protect environment (Article 35 (1)). It further obligates the State to take appropriate steps for the protection of natural resources and ensure their exploitation in an equitable and sustainable manner (Article 120). (19) Kyrgyzstan Constitution proclaims that an unpolluted environment is the right of all citizens and in case of harm to them resulting from ecological crimes, they shall be entitled to compensation (Article 35). (20) Macedonia Constitution declares that clean environment is the right of each person. It casts duty on the State to create necessary conditions to enjoy this right (Article 43). It acknowledges importance of development of ecology in improving quality of human life (Article 8). (21) Madagascar Constitution proclaims that State shall assure protection of environment and its respect shall be the duty of each person (Article 39). (22) Moldova Constitution states that to live in a safe environment is the right of each individual. It holds persons accountable for damage to human health caused by ecological crimes (Article 37). It declares that freedom to exercise right of private property is limited by duty to preserve environment (Article 46). (23) Mongolia Constitution states that to have safe environment is the right of all individuals (Article 16(2)). It empowers State to acquire or confiscate land being used in a way to cause harm to public health or environment (Article 6(4)). (24) Mozambique Constitution proclaims that healthy environment is the right of all individuals and casts duty on the State to ensure environmental protection for raising their living standard (Article 37). (25) Kingdom of the Netherlands Constitution obligates the State to make efforts for preservation and improvement of environment (Article 21). (26) Nicaragua Constitution declares that clean environment is the right of all citizens and casts duty on the State to take steps for preservation and conservation of environment (Article 60). It holds State responsible for protection of environment and for an equitable exploitation of natural wealth (Article 102). (27) Niger Constitution states that clean environment is the right of every individual and its protection is the duty of State. It further provides that dumping of hazardous waste of foreign origin shall be an offence (Article 27). (28) Kingdom of Norway Constitution declares that a healthy environment shall be the right of all individuals and the natural resources shall be safeguarded and exploited only in a rational manner (Article 110b). (29) Paraguay Constitution proclaims that safe environment is the right of each individual (Article 7). It restricts or prohibits activities that harm environment and establishes sanctions for ecological crimes. It forbids importation or dumping of foreign toxic waste on the national territory and holds those liable to compensation who cause damage to environment (Article 8). (30) Philippines Constitution directs State to ensure protection of right of individuals to healthy environment while maintaining state of harmonious relationship with nature (Article II (Section 16)). (31) Poland Constitution proclaims that the individual has right to benefit from natural environment and makes it his duty to protect it (Article 71). (32) Portuguese Republic Constitution declares that clean environment is the right of each person and obligates State to develop natural resources, preserve cultural assets of historical or artistic interest, ensure proper development of the national territory, combat environmental contamination and encourage exploitation of natural resources in an equitable and sustainable manner (Article 66). (33) Russian Federation Constitution declares that a healthy environment is the right of each person and he is entitled to compensation for any harm caused to him by ecological offences (Article 42). It forbids use of property in a way that causes injury to environment (Article 36). (34) Kingdom of Saudi Arabia Constitution states that State works toward environmental protection and improvement (Article 32). (35) Slovak Republic Constitution proclaims that a favourable environment is the right of all individuals and casts duty on State to take measures for rational use of natural resources. It forbids actions that could cause harm to environment (Article 44). It disallows enjoyment of property rights in such a way as to cause injury to nature, and historic monuments (Article 20). (36) Slovenia Constitution proclaims that an unpolluted environment shall be a right of everyone. It holds persons liable to compensation for damage caused to natural environment (Article 72). (37) South Africa Constitution declares that a safe environment is the right of all individuals and it shall be protected by preventing pollution and ecological deterioration (Article 24). (38) Spain Constitution states that a healthy environment is the right of each person. It casts duty on the State to ensure exploitation of natural resources in a rational manner and to impose penalties for ecological crimes (Article 45). The Constitution further requires the State to preserve cultural patrimony (Article 46). (39) Tajikistan Constitution proclaims that sound health through environmental protection is the right of each person (Article 38) and he has a duty to protect cultural patrimony (Article 44). (40) Turkey Constitution proclaims that an uncontaminated and safe environment is the right of all individuals and obligates State for improving natural environment and preventing its contamination (Article 56). It requires State to ensure preservation of cultural heritage (Article 63). (41) Uganda Constitution states that clean environment is the right of each person (Article 39). (42) Ukraine Constitution declares that decent environment is the right of all persons and they are entitled to compensation for any harm caused to them from ecological crimes (Article 50). (43) Republic of Venezuela Constitution requires the State to give attention to the preservation of natural resources, and to ensure their equitable and sustainable use (Article 106). It proclaims that all individuals have a right to clean environment and obligates State to ensure that people develop in a pollution free environment (Article 127). (44) France In 2005, France adopted the Environmental Charter as a part of its Constitution that guarantees a clean environment as a right of each individual and enshrines various environmental principles.12 (45) Islamic Republic of Pakistan No express provision guaranteeing a right to a healthy environment is found in the Constitution. This gap has been filled by Shehla Zia case wherein it is held that this right is inherent in constitutionally protected fundamental rights to life and dignity.13 Conclusion In international law, right to a healthy environment generally has 'soft law' status. For preservation of environment in order to promote well-being of people, community of nations has a great duty to endeavour for global acceptance of this right as an enforceable human right. Human rights activists as well as the environmentalists should come forward to play a catalytic role to materialize that idea. European Convention on Human Rights does not contain any explicit reference to the right to a clean environment. This necessitates taking of steps to incorporate it in that document as an enforceable human right as that will ensure better protection of environment in the benefit of people. Right to environmental protection has been formulated in many national constitutions to be one of the State's duties, not to be a fundamental right for individuals. It has, therefore, less practical legal meaning than other fundamental rights. These constitutions would better safeguard the environment, if a new fundamental right to a healthy environment were formulated for individuals. For reason of the absence of an explicit environmental right, existing human rights like rights to life and dignity or to health have been looked into for environmental purposes, as is evident from the developments especially in the Indian and Pakistani jurisprudence but they lack the ability to adequately protect the environment. A more comprehensive norm thus is needed to be included in the catalogue of constitutional rights as an explicit general right to a healthy environment. That would better guarantee a greater improvement of the quality of environment as well as a higher status of individual's health.