Linking Human Rights and the Environment | Daily News
Environmental Justice

Linking Human Rights and the Environment

 Part 2

Several recognized procedural rights are increasingly applied in relation to environmental issues and are generally considered as forming part of environmental rights. These rights are found in international human rights law and reflected for most part in national constitutions. These rights include: the freedom of information, right to participate in the decision-making process which is transparent and participatory and which holds the government entity in question accountable for its action. In other words, they promote the principles of transparency and accountability, essential for democratic governance.

Applied in relation to environmental issues these mean the right to have access to information affecting one’s environment, the right to participate in decisions affecting one’s environment, the right to participate in decisions affecting the environment and the right to seek redress in the event one’s environment is impaired. Several international instruments, both binding and non-binding, endorse environmental procedural rights. The Rio Declaration contains several provisions on these rights.

The Declaration contains a provision on environmental impact assessment (Principle 17) for activities that are likely to have a significant adverse impact on the environment. The EIA process is important as it provides access to information, and is transparent and participatory in nature. Thus, the right to receive information relating to the environment, the right to participate in the decision-making process and the right to seek redress for the vindication of environmental rights are recognized rights under international environmental law. These rights, particularly, the right to information and the right to participate promote principles of transparency and accountability which are essential in a democratic society.

Substantive Rights

Several existing substantive human rights have been used in relation to environmental issues, notably, the right to life, right to health and the right to an adequate standard of health in the absence of a specific environmental right or right to a healthy environment. The drawback of this approach is that the victim has to prove that the environmental issue in question has violated one of his human rights. If this link cannot be established, then the action would fail: Thus, for example, a victim of pollution caused by an industrial establishment has to prove that, as a result of suffering pollution damage, his health has been impaired or his standard of living has been affected. It may not be easy to establish this link in every case. On the other hand, the recognition of a distinct right to a healthy environment would allow a victim to establish that the pollution level in his neighbourhood has increased as a result of the industrial establishment and exceeds the permissible level for that particular pollutant/s (assuming, of course, that such levels have been laid down).

In such a situation, it is not necessary to establish individual injury which may be long term anyway, as the victim would be in a position to establish that the environment he is living in has been polluted by the activity of the industry in question. He only needs to establish that because of the emission of a pollutant above a certain threshold, the environment is no longer healthy for him to live in. In order to proceed on this basis, however, thresholds and standards for the emission of pollutants have to be laid down. This approach thus circumvents one major problem inherent in the litigation process, namely establishing injury to oneself and establishing causation. The other advantage of this approach is that timely action can be taken to remedy the environmental problem without having to wait until significant injury to people has manifested itself. In some instances, establishing injury is not a problem, but by then, the environmental problem has persisted for so long that remedial action has become either impossible or too expensive.

National Level

Sustainable development, pathway to a prosperous future

While many States do not embody a specific right to a healthy environment, they do have mechanisms in place in relation to human rights violations. These mechanisms have been used by environmentalists and victims of environmental injustices to vindicate their rights. Though not without its own problems, these human rights mechanisms have played an invaluable role in protecting environmental rights.

The 1978 Constitution of Sri Lanka does not guarantee the right to life. It also does not specifically endorse the right to a clean environment. Although the fundamental rights Chapter III of our Constitution is silent on these matters, the Directive Principles of State Policy and Fundamental Duties in Chapter VI of the 1978 Constitution specifically refer to the protection of the environment and provides in Article 27(14) that : “The State shall protect, preserve and improve the environment for the benefit of the community”. These directive principles “shall guide the Parliament, the President and the Cabinet of Ministers in the enactment of laws and the government of Sri Lanka for the establishment of a just and free society”. According to Article 28(f) of the 1978 Constitution among the fundamental duties of every person in Sri Lanka is the duty “to protect nature and conserve its reaches”. Article 29 of the 1978 Constitution, however, mandates that the constitutional provisions in the Chapter VI on Directive Principles of State Policy and Fundamental Duties do not confer legal rights or obligations on or upon the State and are thus not enforceable in any court or tribunals. One significant judgement in the area of environmental protection and sustainable development was delivered by Supreme Court Bulankulama and others v. the Secretary of Industrial Development and Others (2000).

Seven petitioners, six of them being farmers and a monk from a temple in the vicinity of the Eppawala Phosphate deposits in Anuradhapura District claimed that the proposed agreement between the government of Sri Lanka and Freeport MackMoran Resources Partners of USA, a multinational mining company to whom the right to exclusively mine the phosphate deposits was to be given, would result in the violation of those fundamental rights to equality (Article 12), the right to engage in an occupation of one’s choice (Article 14(1)(g)) and freedom to movement and choosing one’s residence within in Sri Lanka (Article 14(1)(h)) of the 1978 Constitution. His Lordship Justice Amarasinghe, on behalf of the Supreme Court, in a lengthy judgement took the parameters of the discourse of constitutional protection of rights to new heights. His lordship held that the proposed agreement indeed violated the rights of the petitioners under Article 12(1), 14(1)(g) and 14(1)(h) of the 1978 Constitution. The argument raised by the petitioners that the State is under an obligation to utilize natural resources in a sustainable manner was discussed in length in the judgement. The Supreme Court referred to both the Stockholm (1972) and the Rio (1992) Declarations on Environmental Protection and highlighted the principles relating to sustainable development, according to which the proposed agreement must be reviewed. The Court noted that human beings are at the centre of the concept of sustainable development and that they are entitled to a healthy and productive life in harmony with nature. The Court stated that in order to achieve sustainable development environmental protection shall constitute an integral part of the development process. The Supreme Court also emphasized that Sri Lanka as a member of the United Nations could “hardly ignore” environmental requirements in the Stockholm and the Rio Declarations.

Undoubtedly, environmental rights are not self-executing except incorporating them as justiciable rights in the Constitution and they need positive State intervention for their fulfillment. This characteristic of the right to environment may cause some difficulties in its full realization and enforcement as there is no identified, specific formula to carry out this process. A holistic approach to the subject through an innovative method based on the legal system would ease such difficulties in the process of executing environmental rights. A human rights approach to environmental protection is not proposed here to the exclusion of other approaches or species with an ecology. Rather, it is proposed as a tool to supplement other approaches and mechanisms on environmental protection.

 

(The writer is a retired Professor in Law in the University of Sri Jayawardenepura. He is an Attorney-at-Law and practiced in Courts with PhD in law)

To be continued

 


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