The concept of human rights in general emerged after the Second World War, but the right to a healthy environment, as one of those human rights, was never a priority. Today, this right is an emerging concept that is being hotly debated in the human rights arena. A healthy environment is an essential aspect of the right to life, not only for human beings but also for other animals on the planet. Violation, therefore, of the right to a healthy environment is potentially a violation of the basic right to life. Whether, therefore, recognition should be given to a new fundamental right to a healthy environment has emerged as an issue in national and international private sectors and as well as in international politics.
The debate has attracted much jurisprudential and academic attention with divided views being expressed. Environmental problems that could have a serious impact on human health and could even threaten the very existence of human life have prompted the current debate. The right to life is the most fundamental of all rights, but life itself may become worthless if a person’s right to a healthy environment is under threat. Environmental protection then becomes essential for Man’s survival, or, as one author has observed, ‘humankind must be protected because human beings have become an endangered species’.
Human Rights and a Healthy Environment
The term ‘healthy environment’ has wide implications and may involve imprecise adjectives such as ‘clean’, ‘decent’, and ‘satisfactory’. Professor Atapattu describes the right to environment as a substantive right alongside the right to life, the right to health, the right to an adequate standard of living, the right to information and the right to privacy. The Draft Principle of Human Rights and the Environment 1994 defines the right to a healthy environment as including the right to be free from pollution, the right to quality air and water, the right to safe and healthy food, and the right to adequate housing and living conditions. Professor D. Shelton suggests that ultimately the right to environment demands environmental standards that regulate harmful air pollution and other types of emission. A healthy and clean environment is one that permits the ‘realisation of a life of dignity and well-being’.
Human rights are universal and inherent in nature itself. It is said that they are the sum total of the opportunities that ensure adequate development and expression of individual personality. The safeguarding of Man’s environmental rights is, therefore, paramount in protecting human dignity and survival. A growing number of global and regional legal instruments and national constitutions include a right to environment among their human rights guarantees.
The Universal Declaration of Human Rights 1948 (UDHR) and the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) make no explicit mention of the human right to a healthy environment. However, since these documents are the foundation and source of all rights, they indirectly deal with a healthy environment as a human right. For example, Article (25) of the UDHR recognises the right of all people to a standard of living adequate for health, and Article (11) of the ICESCR emphasises the standard of living and improvement of living.
The UN Declaration on the Human Environment in 1972 (the Stockholm Declaration) was an early international instrument, agreed by the UN: it deals specifically with human rights and the quality of the environment. Principle 1 of the Declaration proclaims: ‘Man has the right to freedom, equality and a fundamental right to adequate conditions of life in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.’ This principle, however, did not proclaim an absolute human right to a healthy environment: it did, though, recognise that basic environmental health was vital for the enjoyment of human rights.
The most recent instrument on the subject, emanating from the UN Conference on Environment and Development 1992 held in Rio de Janeiro (the Rio Declaration), expressed the view that ‘human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’ Although the Rio Declaration did not give formal recognition to a human right to a healthy environment, it did explicitly recognise that environmental degradation has a negative effect on the enjoyment of human life, health and a person’s standard of living.
The Stockholm and Rio declarations did not, therefore, create legal rights and obligations in themselves, but they did set out guiding principles for future international and national environmental laws. In recent decades, international human rights law and international environmental law have developed more rapidly than any other aspect of international law.
After the Stockholm Declaration, the concept of a right to environment grew quickly, and hundreds of international environmental soft law instruments resulted. Two regional instruments, the African Charter on Human and People’s Rights and the Protocol of San Salvador, explicitly recognised the right to a healthy environment: these are important since they are binding on the party states.
Many national constitutions and laws recognise the right to a healthy environment or establish a duty on the national government to provide and protect a healthy environment. In countries that do not have specific constitutional provisions for this right, it may have become recognised through interpretation in the courts. Of the 203 currently recognised nations, 50 have explicitly recognised the right to a healthy environment in their constitution, and a further 30 have in theirs recognised a duty to defend or protect the environment.
Moreover, courts around the world have interpreted the near-universal provision of the ‘right to life to implicate the right to a healthy environment in which to live that life’. A pioneer in this field has been the Supreme Court of India, which has adopted an expansive interpretation of the right to life clause in the Indian constitution. Whereas Article 21 of the constitution stipulates that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’, the court has expanded this to encompass human dignity, the right to a livelihood, the right to shelter and clothing, and environmental rights.
International legal instruments and constitutional incorporation are proof of the emphatic emergence of the concept of a right to a healthy environment as a fundamental human right: a consensus is clearly growing throughout the world. It is widely appreciated now that our global environment is deteriorating rapidly in a manner that can compromise mankind’s well being and prevent the full enjoyment of all human rights. Our failure to tackle this problem will seriously threaten the world’s ecological balance and with that the eventual survival of the human race.
What of Nepal?
Nepal’s Interim Constitution of 2007 for the first time provided rights to environment and health, women’s rights, and a right to social justice. Article 16 (1) of the Constitution provides that every person shall have the right to live in a clean environment. However, a catalogue of rights and freedoms expressed in the constitution, no matter how extensive, is insufficient unless those rights and freedoms are supported by strong liberal legislation, firm enforcement mechanisms, and by an independent judiciary able to interpret their provisions.
Despite the constitutional guarantee of a healthy environment, no enforcement mechanism has been provided in the country so far. Millions of people, especially in cities, are forced to live in a poor environment. Every day, people from all walks of life have to struggle with pollution from traffic and industry, and every 50 metres there is a mountain of garbage.
Recently the government’s ambitious and praiseworthy National Volunteer Campaign brought Prime Minister Baburam Bhattarai, senior government officials, and hundreds of volunteers and municipal employees on to Kathmandu’s streets for a week-long cleaning campaign. This kind of volunteer activity may be helpful in creating public awareness and perhaps in earning overnight cheap popularity for some individuals. However, removing some garbage and dust from the streets in this manner does not amount to a long-term solution. We require a proper policy and programme and an adequate mechanism for implementing and controlling it.
Human rights, when expressed in national constitutions and in laws, directly influence government agencies, as well as institutions and individuals, in the shaping of policies and practices. Our own forthcoming constitution must recognise the right to a healthy environment as a fully-fledged fundamental right of every citizen. Strong laws and regulations need to be formulated thereafter in different sectors (e.g. transportation and industry) to regulate public and private institutions that contribute to environmental pollution that all citizens must suffer. Most importantly, we need to identify the root causes of the environmental pollution and to develop a holistic approach to the maintenance of a healthy and sound environment.
There is no doubt today that one of the greatest threats to future human existence comes from the deteriorating human environment. Our own enjoyment of fundamental human rights is severely affected and the future well-being of mankind is compromised. Procedurally, the right to a healthy environment encompasses other rights such as the right to information, the right to participate, and the right to effective remedies: these are themselves basic constituents of good governance and participatory democracy. Thus, in practice the right to a healthy environment demands that citizens are fully informed of the health of the environment and of any activity that threatens it, and that they participate in the decision making process and arrive at an effective solution.
(Dr Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights law from Lancaster University, U.K, is a researcher in International Human Rights Law and an Advocate in the Supreme Court Nepal. He can be reached at gyanbasnet@aol.com)
