The Right to the Environment. Emerging Implications in Theory and Praxis

Date01 December 1995
Published date01 December 1995
DOI10.1177/016934419501300403
AuthorSanjeev Prakash
Subject MatterPart A: Article
The Right to the Environment. Emerging Implications in Theory
and Praxis
Sanjeev Prakash'
Abstract
In this article the author describes recent thinking and development concerning a human
right to the environment. The, general framing
of
the linkage between human rights
and
the environment and the uncertainty and complexity
of
scientific knowledge about
environmental problems have both contributed to an amount
of
contention over the value
of
a right to the environment. The article analyzes the linkage between human rights and
processes
of
environment and development and discusses the relevance
of
environmental
issues to the observance
of
established rights such as those to life and health. It then
explores the definition, scope, substance and procedural aspects
of
the proposed right to
the environment. While there is a growing consensus that the right to the environment can
essentially be taken as a procedural right, the procedures and mechanisms through which
it is monitored, supervised and enforced will take time to evolve. In an afterword the
author reflects on some characteristic responses to the introduction
of
'new' rights into
the present human rights framework.
Introduction
Discussions over the need for and definition of a right to the environment have proceeded
apace at numerous forums over the past several years. The UN Sub-Commission for the
Prevention
of
Discrimination and the Protection of Minorities commissioned in 1989 a
report on the subject which was completed in July 1994.1The concept has been discussed
frequently in regional and international conferences, and there was a determined though
ultimately unsuccessful attempt to place environmental rights at the centre
of
the
declaration
of
the UNCED Conference
of
1992, known as the 'Rio Declaration'.
While problems of definition and a pervading lack of clarity about important issues
remain, there has been growing pressure from some international lawyers, environmental
NGOs and others to enshrine such a right in appropriate international instruments and to
provide corresponding mechanisms for their observance. Concurrently, there has been a
rapid proliferation of case law and courtroom activity in this field, at both national and
regional levels.
Visiting Researcher, Danish Centre for Human Rights. The very general title has been chosen so as not to
prejudge or favour specific qualifications, e.g. 'safe and healthy environment', which will be discussed in
this paper. The right to the environment may be formally expressed as more than one right, hence the
alternate phrase 'rights to the environment' is sometimes used where necessitated by context.
'Environmental rights' is a more general and frequently used term that does not imply a specific claim to
ahuman right or rights.
Final report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur, Human Rights and the
Environment, E/CN.4/Sub.211994/9, 6 July 1994. This report, together with various interim reports by the
Special Rapporteur since 1990, com prise an interesting and comprehensive document on the state of current
thinking about human rights and the environment. In her work the Special Rapporteur was assisted by the
Sierra Club
Legal
Defense Fund, an NGO that submitted various documents to the Sub-Commission. See
especiallyHuman Rights and the Environment: The legal basisfor a human right to the environment, April
1992; and Human Rights and the Environment: Issue paper, February 1994.
403
NQHR 4
/1995
The issue is particularly timely because the UN Commission on Human Rights at its
51st session adopted a consensus asking for the opinions of governments, specialised
agencies and intergovernmental and non-governmental organisations on the matters raised
in the Sub-Commission's report, This resolution was agreed to after an earlier draft
submitted by the
Cuban
delegation calling for the appointment
of
aCommission-level
special rapporteur to examine the issues contained in this report met with a degree of
scepticism and failed to generate adequate support.
Clearly, the right to the environment is a complex right: the roster of current
definitions cuts across traditional human rights categories and 'generations', and
observance may imply changes in the relationships between human institutions and our
natural environment.
It
is also a right where implementation and performance involve
many separate fields, including development policies, economic theory, environmental
conservation, market competition for scarce resources, and trade regimes, as well as
traditional human rights processes and institutions. Part
of
the complexity results from a
characteristic set
of
constraints: by their very nature, rights to the environment are not
primarily involved
with
creating limits or restraints on the powers
of
States, as are civil
'first-generation' rights, nor are they principally concerned with States' observance of a
clear set
of
obligations and principles. Instead such rights are said to involve balances
between widely disparate processes and institutions, and notions
of
offence in which
potential violators might include a multiplicity of entities: e.g. commercial firms, State
agencies, and other institutions, groups and individuals.
Much
of
the environmental debate, at least at the level of global systems, is about the
prediction
of
problems yet to occur (such as extensive deforestation and hydrocarbon
emissions leading to changes in the earth's climate, soil degradation leading to
desertification, or unsustainable fish catches leading to exhausted oceanic fish stocks), as
well as processes about which there are varying degrees of scientific uncertainty. However,
in most cases action cannot wait till the problem has fully emerged, for by then it will be
too late to prevent irreversible damage to some part of our integral life-support system.
This means that any formulation of such problems, and consequently any fleshing out of
the substantive nature of rights to the environment, will have an evolutionary and
anticipatory character. Such character is quite in keeping with current thinking on the
nature
of
human rights, though, as discussed below.
Apart from a lack
of
definition regarding duty-holders and relating to its anticipatory
character, there remain other problems associated with the temporal dimension of the right
(i.e. the intergenerational issues associated with the environment), with the question of
setting
of
standards and defining minimal entitlements, and with the question of whether
such rights involve new, substantive articles for the catalogue
of
human rights or are
essentially covered by the potential interpretations inherent in existing substantive and
procedural rights. This is no easy question. While there is now general recogninon
__
of the
clear links between human rights and the environment, the extent to which environmental
rights may legally be instituted remains a controversial and open issue. Legal positivists,
among others, largely reject the socio-economic aspects of such rights as being
unguaranteeable.
Though there are doubts that the complexity of the various problems concerning the
environment as well as a lack of appropriate institutional mechanisms may in practice limit
the utility
of
such rights at present there are concurrently many good reasons offered as
to why the 'rights approach' to matters
of
the environment, and to sustainability in
development, possesses both urgency and relevance. Whatever be the outcome of this
404

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