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Incorporating International Environmental Law into Human Rights Law

Article by Kerensa Gimre


Drought by Judd McCullum

The Stockholm Declaration of 1972 internationally recognized the link between human rights and the environment, stating that “the enjoyment of freedom and equality among humans is inseparable from the preservation of an environmental quality which permits human dignity and human welfare.” However, enforcement of environmental law through the human rights framework has proved difficult. Since the Stockholm Declaration, courts have recognized the environmental dimension of human rights, but the right to a healthy environment is considered only an extension of recognized human rights, not an inherent right. Further, because human rights are conferred on the individual, and most environmental damages occur at the community or regional level, human rights law is largely ineffective at regulating the environment, a public good. However, human rights law is an advantageous mechanism for environmental protection because it addresses damages to the private life, health, and property of individuals; it holds governments directly accountable for failing to regulate certain damaging environmental practices that directly affect individuals and inspires the human right to a healthy environment due to the causal relationship between environmental & human harm.


Interpretation by the European Court of Human Rights


Article 8(1) of the European Convention on Human Rights (ECHR) states, “everyone has the right to respect for his private and family life, his home and his correspondence.” While the ECHR does not contain an explicit right to a clean environment, The European Court of Human Rights often interprets Article 8(1) as implying some duty of environmental protection. Environmental degradation can negatively impact an individual’s home or family life, directly infringing upon the individual’s human rights. Depending on how the environmental damage impacts human rights, it may be the State’s duty to protect from such environmental damage.


In several cases, the Court affirms that the human right to private life in Article 8(1) can justify enforcement of environmental protections. In Lopez Ostra v. Spain (1994), the Court found that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely.” In Oneryildiz v. Turkey (2005), the Court found that it is necessary for States to defend “against threats to the right of life” and that it may be necessary for government to adopt environmental protection measures in order to protect human rights, such as the right to life.


Interpretations Outside of Europe


In these cases and others, the European Court always construes human rights as individual rights. This interpretation differs from the African Charter on Human and People’s Rights (ACHPR) and the American Convention on Human Rights (ACHR), which consider the collective dimension of human rights. Since environmental problems generally cause harm on a regional, not individual level, this interpretation suggests a higher level of government responsibility for environmental protection and human rights.


In Ogoni v. Nigeria, the court interprets Article 24 of the ACHPR as stating, “an environment degraded by pollution and defaced by the destruction of all beauty and variety is as contrary to satisfactory living conditions and development as the breakdown of the fundamental ecological equilibria is harmful to physical and moral health [of the individual].” Similarly, in Mayagna Sumo Awas Tingni Community v. Nicaragua, the Court interpreted Article 21 of the ACHR and the right to property “as inclusive of the customary community entitlement of the indigenous people to use their ancestral land for agriculture and hunting, and to have it respected against the environmentally and culturally destructive project of commercial logging.” These views are more expansive than the European Court’s and use human rights to guarantee a community, not just an individual, the right to environmental quality that will not impact human rights. This circumvents the problem of conferring human rights on the individual but, in most cases, only being able to prove environmental harm at the level of the community.


Interpretations by the UN


The UN Covenants contain few environmental considerations in their human rights provisions. Several environmental cases decided by the UN Human Rights Council are brought under Article 27 of the Covenant on Civil and Political Rights, a minority protection clause with a cultural provision that confers rights on “persons belonging to minorities” but does not provide collective rights to the minority group itself.


In the case of Lansman v. Finland, the Council found that “Article 27 requires that a member of a minority shall not be denied his right to enjoy his culture, [but] measures that have a limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under Article 27.” In Lubicon Lake Band v. Canada, the Council expanded this view to find that environmental damages from oil and gas extraction on the lands of an indigenous community violated Article 27. In Lubicon, the Council conferred human rights to the indigenous community as a whole. Similarly, in Francis Hopu and Tepoaitu Bessert v. France, the Council broadly interpreted Article 27 (the protection of private and family life), by construing “family” as inclusive of the entire indigenous community.


The Council’s Resolution 2005/60 reaffirms the UN’s recognition of the interconnection between human rights, environmental protection, and sustainable development: “Climate change-related impacts have a range of implications, both direct and indirect, for the effective enjoyment of human rights including, inter alia, the right to life, the right to adequate food, the right to the highest attainable standard of health, the right to adequate housing, the right to self-determination and human rights obligations related to access to safe drinking water and sanitation, and recalling that in no case may a people be deprived of its own means of subsistence.” However, the Council hesitates to fully incorporate environmental protection into human rights law, adding “While climate change has obvious implications for the enjoyment of human rights, it is less obvious whether, and to what extent, such effects can be qualified as human rights violations in a strict legal sense.”


Discussion


The right to a home, family, and private life is common across treaty regimes, but different courts have inconsistent interpretations of a State’s responsibility to protect this right. Broader interpretations that confer rights upon communities, not just individuals, allow for greater environmental protection. This is helpful since most environmental harm occurs on a community level, where it is difficult to prove harm to an individual.


Due to the individualistic treatment in several courts, it is clear that interpretations by European courts and the UN are insufficient to tackle environmental degradation that harms human rights at a global or transboundary level, or even environmental degradation on a local scale, where it is difficult to prove that individualized harm exceeds societal benefits. As the UN has noted, “human rights litigation is not well-suited to promote precautionary measures […] unless such risks pose an imminent threat to the human rights of specific individuals. Yet, by drawing attention to the broader human rights implications of climate change risks, the human rights perspective, in line with the precautionary principle, emphasizes the need to avoid unnecessary delay in taking action to contain the threat of global warming.” This statement reiterates that it is necessary to take action to prevent climate change that can impinge upon human rights but realizes that current human rights litigation frameworks are ill equipped to provide legal impetus to this end.


A 2009 report from the UN Office of the High Commissioner on Human Rights reaffirms that “further guidance is needed to inform options for further development of the law in this area,” adding that “while the universal human rights treaties do not refer to a specific right to a safe and healthy environment, the United Nations human rights treaty bodies all recognize the intrinsic link between the environment and the realization of a range of human rights, such as the right to life, to health, to food, to water, and to housing.”


The outbreak of the Syrian Civil War emphasizes the importance of shifting the perspective of human rights law to collectivize human rights and recognize the dangers posed by climate change and environmental degradation. Multiple studies demonstrate that climate change caused and intensified the drought that ultimately led to the human rights crisis. Even though human rights legal regimes are currently ill-posed to promote precautionary measures to protect the environment, broader liability could be imposed on countries and corporations for the climate change and the human rights impacts caused their actions. Through imposing broader liability, human rights litigation that incorporates a consideration of environmental harm at the community level could become a more effective avenue for promoting precautionary measures.

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