Virtual Guest Speakers 

March 20:

Andriy Andrusevych - Ivan Franko Lviv National University, Ukarine
Topic:  Environmental Human Rights in International Law
 
Biography
Transcript of Lecture
Other links
Discussion List   (Mr. Andrusevych will participate from March 20 - March 24).

Short Biography of Andriy Andrusevych

Biography: Andriy Andrusevych is a graduate of the Ivan Franko Lviv National University in the Ukraine, and currently teaches on their faculty.
 


Transcript of lecture
 
I am glad to have an opportunity to talk before an audience of on-line students about environmental human rights, an opportunity given to me by Stephen M. Johnson and the Environmental Law Virtual Guest Speaker Program. Taking into account "electronic teaching", which we are now using, I cannot help but say that environmental problems, especially global environmental issues, emerged in and belong to a new society, a new community of people where Internet, e-mail, and web-conferencing are an integral element. This underlines the importance for all of us to study, work and collaborate through the Internet. This technology allows us environmental lawyers to be more co-operative and to stand shoulder-to-shoulder in our common struggle to protect Nature.

While writing this lecture, I intentionally didn't include footnotes as I don't want you read it as an article in a journal. Instead, please read it as an on-line discussion and refer to any documents mentioned in the text to find out more about various issues arising during our talk. In addition, you may refer to the following books to learn more about given topic:

I would like to thank to Prof. Svitlana Kravchenko and Prof. John Bonine for their suggestions and help. In addition, I want to thank to Peggy Dame who checked this lecture concerning English grammar (nonetheless all mistakes are mine).
 
Introduction

As humankind has developed over the course of time, its attitude towards nature has changed and, I would say, has come full circle. Over most of the world, our ancient progenitors believed in nature in the way that now many people believe in God. They were part of the natural environment - like mountains, wolves, flowers, and winds. Later there appeared an image of God, and man began to use new tools and to treat nature as a source for living, the object of man's activities. (However, nowadays some religions do not see man as something above but as something intrinsic to the whole of nature). No doubt, the Weltanschauung of human beings, the ways of living, religion, and law, are interconnected. Technological revolutions have been the natural results of our development, development that regarded nature only as an object, and even as a rival to human beings in their fight for life.

Today all people face the necessity of recognizing again that no division can be made between Nature and Man. This is why I said earlier that we have come full circle.  Humankind has become aware of the common interdependence on Earth. Without understanding this interdependence, no environmental rights could have emerged because these rights are based on the link between man (in this case "human rights") and nature ("environmental rights").
 
Starting in the 1960s, humankind began to understand that its survival is threatened by its own development. In ‘Only One Earth', the background report for Stockholm Conference, we read:

(Barbara Ward and Renee Dubos. "Only one earth: The care and maintenance of a small planet")

Consequently, the problem of guaranteeing fundamental human rights, including the right to life, appeared in the international (and national) agenda in the context of environmental issues. It led to an understanding of the relationship between the environment and human rights.

While reading the text below, bear in mind these two "aspects" of one question: the environmental aspect and human rights aspect.  As you may guess from the Introduction, I regard environmental human rights as a result of the development of environmental law. For this reason, I do not include in this discussion much about the history of human rights in international law or the international human rights system. However, international law of human rights remains an important area of contemporary international law and an important source for defending environmental human rights, especially on the international scene.
 

Environmental human rights

If anyone talks about environmental human rights, the first thing mentioned is "the right to a healthy environment". It is a basic environmental right and one of the fundamental human rights.  It is also a basic element of contemporary international environmental law.

In looking through various national legal acts and international documents, you will find different notions: the right to environments that are "healthy", "clean", "balanced", "ecologically stable", or "suitable". For the purpose of our discussion, we will use the "right to a healthy environment" in order to not waste our time on identifying differences between these various notions. However, I have to say that it's not a simple issue and it's of great importance in practice.

What will be important for us today is to understand the nature of the right to a healthy environment, the problem of identifying a healthy environment, and the issues of enforcing these rights.

Since 1945, many international documents have been developed in the area of human rights. The most important is the International Bill of Human Rights- the Universal Declaration of Human Rights and two International Covenants of 1966.  However, if you were to search these documents for any mention of environmental rights or a healthy environment, you would not find anything. Neither would you find the right to a healthy environment in the European Convention for the Protection of Human Rights and Fundamental Freedoms or in the American Convention on Human Rights. These important international documents were adopted at a time when no relationship between human rights and environment was recognized. When they were drafted, it was the very beginning of the era of human rights in international law. At those times, international law only began to focus on human rights and the issue of developing and protecting human rights was the most urgent and important as well as keeping peace on the earth.

However, some environmental lawyers think that although the right to a healthy environment wasn't included, in for example, the Covenants of 1966, the international community was interested in including such a right in the 1960s. It can be argued that the right to a healthy environment was assumed by the recognition of the right to life. In addition, Art.25 of the Universal Declaration of Human Rights and Art.11 of the International Covenant on Economic, Social and Cultural Rights provide that "everyone has the right to a standard of living adequate for the health and well-being…".   It can also be argued that this proves the recognition of the right to a healthy environment by the Declaration and Covenant mentioned above. In other words, the right to a healthy environment is a precondition for fulfilling the right to life.  The acknowledgement of the last argument we can find in the first paragraph of the Preamble to Stockholm Declaration on the Human Environment of 1972 which says :

At the same time, the absence of a direct provision containing the right to a healthy environment gives us the grounds to say that no direct or indirect recognition of the right to a healthy environment is made by the 1966 Covenants or the  Universal Declaration of 1945. It is more difficult to argue, however, that no link between human rights and the environment was assumed.

In any case, whatever your own position, the importance of the Declaration and Covenants cannot be underestimated. They remain necessary for protecting environmental rights as they form the basis for the whole system of human rights in international law. In addition, the arguments mentioned above (as well as others which we'll discuss below) are invaluable while using existing systems for protecting human rights in Europe or America.

Full enjoyment of human rights by everyone is an ultimate goal of the law and I would say of the whole of international law as well. Humans must be at the center of law;  law should exist for the sake of the human beings. Thus, when the deterioration of the natural environment threatens human lives, the international community is faced with the impossible problem of guaranteeing fundamental human rights in poor environmental conditions. As we saw above, the very right to life is doomed when one lives in an unsuitable environment in which the question of human survival or health arises. So, in fact, the recognition of the right to a healthy environment had been pushed ahead by the international human rights system. The system needed such a right; otherwise, the whole system would collapse.

But surprisingly it wasn't human rights law where the right to a healthy environment appeared. The discovering global, transborder and regional environmental problems led to the development of international environmental law (IEL). A milestone in the process of establishing IEL as a branch of international law was the United Nations Conference on the Human Environment, held in Stockholm in 1972 (or Stockholm Conference). The UN Declaration on the Human Environment was one of the main achievements of the Conference. It became the first international document where the right to a healthy environment was proclaimed. Principle 1 of the Declaration reads as follows:

For those willing to be environmental lawyers these words should be the guiding principle of their lives.

As we see, Principle 1 of the Stockholm Declaration doesn't declare directly the right to a healthy environment, but for many years it has been treated and used as a legal basis for the right to a healthy environment. This Principle is an excellent example of the role of so called "soft law". Practically all constitutions revised since 1972 have a provision concerning the human right to a healthy environment. In other words, the influence of the Stockholm Declaration in this regard was universal even though it is not a legally binding instrument.

For many reasons, the issue of protecting the environment has been very complex and complicated since the very moment it was realized. So, environmentalists have developed and tried to use the idea of the human right to a healthy environment as a tool to protect the environment. This gives rise to an important discussion between environmentalists and human rights lawyers concerning the aim of protecting the right to a healthy environment: what or whom are we protecting? Are we protecting Nature (biodiversity, air, oceans, etc.) or humans (their rights)? In fact, until the late 1990s, some human rights activists said that there is no right to a healthy environment at all and that developing new rights (so called "third generation" rights) would shatter the whole international system of human rights.

There's a reason to say that the right to a healthy environment remains a "human" right, that is, that humans and their lives are to be protected. The idea of interconnection and balance within the human rights system leads to the assumption that all human rights must be exercised. But obviously if the right to adequate conditions of life and work, for example, were enjoyed by everyone, it would lead to the deterioration of the natural environment. So, the right to a healthy environment would be violated. Furthermore, in countries where basic political and social rights are being violated, where poverty and hunger are general, claims to protect the environment sound irrelevant. In other words, some human rights scholars argue that there are many basic human rights to protect and there is no need to develop new, environmental rights. Environmentalists are blamed for paying too much attention to nature and biodiversity while other basic human rights and needs are still unprotected.

So we can see two opposite approaches: the environmental approach (where nature is to be protected using the right to a healthy environment) and the human rights approach (where humans and their rights are to be protected).

I personally agree with those who regard the right to a healthy environment as a compromise between the protection of the environment and human rights, a compromise based on the principle of sustainable development.
 

Legal basis for environmental human rights
Stockholm and Rio Declaration

Although the Stockholm Declaration (1972) had an impact on national legislation that led to the constitutional guarantee of the right to a healthy environment, the Declaration alone is not sufficient to protect environmental human rights. Therefore, here arises the question of the legal basis for the right to a healthy environment in international law.

After the Stockholm Declaration, environmental human rights became the object of legal research by international law scholars. Next, the most important achievement was the Rio Declaration on Environment and Development (1992). Principle 1 of the Declaration says:

Again, it falls short of declaring directly the right to a healthy environment and it is a "soft law" instrument. However, what is important is that the Rio Declaration provided for new environmental rights: the right of access to information, the right of public participation in decision-making, and the right to access to justice in environmental matters. Principle 10 says:
Aarhus Convention

Principle 10 of the Rio Declaration led to a special area of concern in the "Environment for Europe" process. Under this process, the Sofia Guidelines on Access to Environmental Information Public Participation in Environmental Decision-Making (1995) were developed. These Guidelines were submitted by the ECE Working Group of Senior Governmental Officials "Environment for Europe" to the third Ministerial Conference "Environment for Europe" held in Sofia (Bulgaria) on 23-25 October, 1998. Later, Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) was drafted and was signed in 1998. Article 1 of the Convention says:

So today, we can talk about the right to a healthy environment as a substantive environmental right and, as it is obvious from the Art. 1 of the Aarhus Convention, we can talk about three procedural rights designed to contribute to the protection of the right to a healthy environment:  the right of access to environmental information, the right of public participation in decision making, the right to access to justice in environmental matters.
 
Other important documents and conventions

In addition to these international documents two other international documents contain the notion of the right to a healthy environment: "San-Salvador" Protocol to the American Convention on Human Rights (1998) and the African Charter on Human and Peoples' Rights. Article11 of the San Salvador Protocol says:

  1. Everyone shall have the right to live in a healthy environment and have access to basic public services.
  2. The States Parties shall promote the protection, preservation, and improvement of the environment.
Article 24 of the African Charter provides: Thus, we can say that the right to a healthy environment is well provided by international law and creates obligations of states to promote and protect it. I should note that African Charter provides for the "peoples' right", which is different from the idea of everyone's right. Therefore, the question of the rights-holders appears and is usually attached to the whole group of "third generation" rights (which sometimes are called collective rights).

There are other "soft-law" documents concerning environmental human rights which also form a basis of the institution (system) of environmental human rights in international law. For example, we should mention the Draft Principles on Human Rights and  the Environment (Ksentini Report) 1994 which provided for the whole set of principles concerning human rights, environment and development.
 

Procedural environmental rights

Environmental rights cannot be realized without procedural rights (access to environmental information, public participation in decision-making, and access to justice in environmental matters).  Without these procedural rights, people cannot be sure that what sounds very good in theory will actually be realized in practice.

The only binding (but not yet in force) international document providing for procedural rights necessary to achieve full enjoyment of the right to a healthy environment is the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. (One exception is the European Union law where we can find Council Directive on Access to Environmental Information- 90/313/EEC of 7 June 1990, OJL158, Council Directive 85/337/EEC of 27 June 1985 on the Assessment of the effects of certain public and private projects on the environment, as well as others). As noted above, the Aarhus Convention provides for three rights: the right to access to environmental information, the right to public participation, and the right to access to justice in environmental matters.

The first two are logically interconnected;  to participate fully in a decision making-process public, one has to be informed about environmental issues. Under the convention, the right to access to justice is applicable when these two rights are violated (Art.9 of the Convention) as well as in other circumstances (Art.9 (3)).
 

Access to information

The right of access to information has two elements under the Convention: active and passive. Article 4 provides for access to environmental information:

This means that information about the environment can be obtained through a request for such information. This I would call an "active" element in that the public has to make a request to obtain the information it needs. Not in all cases, however, is it enough to be able to ask for information because we may not know what is happening or what projects are being planned. To address this, Article 5 of the Convention (Collection and Dissemination of Environmental information) provides that: As you see, this I would call a "passive" element in that the public has to do nothing to get such information. The scope of "environmental information" is a key question in this regard, but I think I should be topic for another discussion.
The right of public participation in decision-making is addressed by articles 6-8 which provide for the right of public participation in decisions on specific activities (Art.6), public participation concerning plans, programmes and policies relating to the environment (Art.7), and public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments (Art.8).
 
Access to participation
 
Public participation is viewed today as a key element of participatory democracy and is well discussed in legal textbooks, so I won't pay much attention to it here. What is special to environmental protection, public participation, has to occur early: (Art. 6 (2) of the Aarhus Convention).

We can also find provisions concerning public participation in other international instruments, e.g. Convention on Environmental Impact Assessment in Transboundary Context (Convention Espoo).
 

Access to justice

Special attention should be paid to the access to justice as it becomes a more and more important issue in many countries where environmentalists fight for human rights and environment (India represents unbelievable example of the environmental case-law).

Article 9 of the Aarhus Convention (Access to Justice) obliges states to ensure access to justice when their rights under the convention are violated. Paragraph 3 of this Article has special importance because it lets the public go to court when public or private institutions violate national environmental legislation:

Some scholars regard equal access to justice as a principle of contemporary international environmental law. In Europe, there has been much progress made in this regard. In 1976, the European Court of Justice held that within the European Community the victims of transfrontier pollution may sue in either their own country or in the polluter's country, and that a decision by either country's court can be executed in any Community country (see Bier v. Mines de Potasse d'Alsace, 1976 Eur. Comm. Ct.J.Rep.1735).
 
Concluding remarks

Environmental human rights are a well developed concept in international law now. Yet lots of questions and problems still exist. I'd like to point to some key questions regarding the enforceability of environmental rights.

The first question to arise is what is meant by a "healthy" (or "suitable," "adequate," etc.) environment? What can serve as a standard for identifying a healthy environment?

Most human rights instruments contain no standards for a healthy environment.  It can be argued that environmental standards can be found in numerous environmental acts which contain exact figures concerning such problems as pollution levels and the abundance of dangerous compounds in the air, soil, and water. But these standards do not include biodiversity issues like preserving species on the earth. Can we claim the violation of our right to a healthy environment if a species of bird is disappearing in Antarctica or even in a neighboring country?

Another important question, in my mind, is that the right to a healthy environment is a compromise like the concept of sustainable development. While making a claim or decision, one should balance the need to protect other rights (right to decent conditions of life) with the need to protect the environment. This is a compromise between homo socialis and homo naturalis. The social element of the man reveals itself in technology, in the invention of new energy sources and the creation of new machines, while the "natural" element lives following natural laws (found in biology, chemistry, physics). Nature accepts everything "natural" from us, but it does not have any social systems with which to "fight back." So, to what extent shall we protect nature? Or, are human rights the "primary" objects for protection?

In the European system of human rights, there exists the European Court of Human Rights. But, it can only judge those rights included in the European Convention for the Protection of Human Rights and Fundamental Freedoms. It contains no environmental rights. Nonetheless, there have been many cases involving environmental matters. So, the existing system of protecting human rights can be used, to some extent, in protecting environmental human rights (see e.g. well known case Lopez v. Spain, 20 E.H.H.R. 277, Series A, No.303 (Dec.9, 1994).

I would like to add that in addition to those rights I have mentioned above,  one can argue for environmental indigenous peoples' rights and women's rights. This topic is well discussed in various textbooks on international environmental law so I will not speak about them now. Besides, in my opinion, they must be spoken about in connection with other indigenous peoples' problems or issues concerning the special role of women in environmental protection.

Last question I would like you to consider is: shall we regard environmental rights only as a means to protect nature?


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