Environmental Rights

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ENVIRONMENTAL RIGHTS

Often referred to as part of the third generation of human rights, the concept of environmental rights is unclear in meaning and content. Environmental rights are elusive because there is no universal definition, and they are controversial because they hybridize the ecocentric perspectives of environmentalists and the anthropocentric perspectives dominant among human rights activists (Apple 2004). No binding international agreement has had environmental rights as its primary focus because such rights fail to fit neatly into either of these two groups. This fact combined with the scarcity of binding international legal instruments has prevented environmental rights from becoming international law. Nonetheless progress on defining and enforcing environmental rights continues on the international, regional, and national levels.

Background

Throughout the late-1950s and early-1960s serious environmental disasters occurred in various regions of the world: oil spills at sea (for example, the tanker Torrey Canyon in the English Channel in 1967), the release of toxic substances from chemical industries (such as mercury in Minamata Bay, Japan, in 1968), and nuclear disasters (for instance, the nuclear center Kytchym, in the former Soviet Union, in 1957). Such accidents, repeated over the years, demonstrated the dangers of incorporating technology into human activity without including some regulation. People also became increasingly aware of risks to human health and the environment due to high-tech industrial and agricultural activities. Emblematic of this concern was Rachel Carson's Silent Spring (1962), which argued the presence and persistence of toxic substances in living organisms as a consequence of the massive use of pesticides.

Legal measures to control unhealthy and dangerous activities and to protect the environment from the abuses of human intervention followed. In 1970, on the date of the first Earth Day celebration, the U.S. government enacted the National Environmental Policy Act, which submitted major development projects to environmental review. Since then laws concerning the environment have multiplied around the world.

Many in the ecological and human rights movements argued that these legal measures were insufficient to guarantee a healthy environment for present and future generations. Some proposed the proclaiming a new human right: the right to a healthy environment. This right does not fit within the category of civil and political or first generation rights, nor of economic, social, and cultural or second generation rights. For this reason environmental rights (along with others, such as rights to development) are sometimes described as third generation rights. Just as the first generation aspired to guarantee individual liberties, and the second equality, the third aims to guarantee solidarity across national boundaries and between present and future generations. Third generation human rights are conceived as collective rather than individual, and they tend to challenge the sovereignty of the modern nation-state.

Formulations at Different Political Levels

The appearance and development of the right to a healthy environment is traceable on three levels: global, through three world conferences on the environment organized by the United Nations; regional, through some agreements on the subject of human rights; and national, through the inclusion of environmental rights in the constitutions of some countries. (Rachel Carson had in fact proposed consideration of an amendment to the U.S. Constitution guaranteeing the right to a clean environment.)

GLOBAL. During the First World Conference on Human Development (Stockholm 1972), the Declaration of the Human Environment was approved, proclaiming the right to a clean environment for the first time at the international level: "Man has the fundamental right to freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for the present and future generations" (principle 1). This was followed ten years later by the U.N. World Charter for Nature (1982), which proclaimed that, in recognition of the fact that humankind is part of nature, "Nature shall be respected and its essential processes shall not be impaired" (principle 1).

Twenty years after the Stockholm meeting the World Conference on the Environment and Development, known as the Earth Summit, took place in Rio de Janeiro. One of the documents approved at this conference was the Declaration of Rio, which affirmed: "The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations" (principle 3). The declaration accepted the idea of sustainable development, a concept that had been defined by the World Commission on the Environment and Development in Our Common Future (1987) as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs." The 2002 Johannesburg Summit unfortunately had neither the level of state participation nor world impact of the two prior conferences.

REGIONAL. Environmental rights are mentioned more explicitly at the regional level. In 1981 the African Charter on Human and People's Rights was approved in Banjul, Gambia, West Africa. The charter states: "All peoples shall have the right to a general satisfactory environment favorable to their development" (article
24). Similarly the additional protocol to the American Convention on Human Rights in the area of economic, social, and cultural rights, the Protocol of San Salvador (1988), affirms in article 11 that (1) Everyone shall have the right to live in a healthy environment and to have access to basic public services; and (2) The States' Parties shall promote the protection, preservation, and improvement of the environment.

In Europe the 1950 European Convention on Human Rights did not include environmental rights. Nevertheless the European Tribunal on Human Rights has included demands for the protection of the environment in some of the articles from the European Convention on Human Rights, such as the right to private and family life (article 8) and the right to information (article 11).

Also in Europe another important advance came in the form of the Aarhus Convention on Access to Information, Public Participation in Decision-making, and Access to Justice in Environmental Matters. Negotiated by the UN Economic Commission for Europe (UNECE), it was adopted in 1998 and implemented on October 30, 2001. Its first article expresses the object of the convention: "In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of the Convention."

NATIONAL. At the national level are many constitutions passed in the seventies and eighties that include a mention of human rights to a sound environment. But those references do not specify jurisdictional guarantees, so some authors deny that they are real rights and consider them only as guidelines for the public powers.

Characteristics of Environmental Rights

There is no consensus on how to define environmental rights. First, it is difficult to define the environment: Is it physical, social, cultural, or all of these? Does it pertain only to nature or also to urban spaces, workplaces, and homes? Second, there is debate as to whether the holders of these rights are individuals, contemporary human communities, future generations, or even ecosystems. Third, there is no agreement about whether environmental rights can be exercised before a juridical organ or simply constitute a mandate to public powers that they develop policies to protect the environment. Finally, doubts arise as to whether environmental rights can also involve duties, as has been proclaimed in some constitutions.

Environmental rights present a challenge to the concept of human rights as they are formulated in the early-twenty-first century. Seriously considering the grant of these rights questions the modern world model that promotes unlimited growth for the rich and permits unjust environmental burdens on the poor, both within countries as well as among different nations. The concept may even be interpreted as challenging the assumed hierarchy of humans over nature that underlies so much economic and social activity.

Environmental rights have a double dimension: juridical and political. The strictly juridical can be narrowed down to a set of powers that individuals or communities can exercise: the right to participate in the making of development policies, the right to information on environmental matters, the right to access tribunals in order to make demands in matters related to the environment, and the right to environmental education. In the United States a number of parties have sued multinational corporations for environmental rights abuses under a federal statute, the Alien Tort Claims Act (ATCA). While the ATCA has been used successfully to prosecute first generation human rights abuses (torture, for example), it has not provided a legitimate basis for environmental rights claims. Environmental wrongs resulting in human harm are not interpreted as violations of international law in the early-twenty-first century (Apple 2004). The applicability of ATCA to non-state actors such as corporations also remains unclear.

The political dimension of environmental rights has both a national and international manifestation. At the national level it involves assuring that political leaders take action to protect and promote the environment. At the international level it extends to the set of endeavors that states undertake in order to achieve sustainable and shared development for the entire world. Environmental rights not only aspire to preserve nature, but also to achieve the conditions necessary for a more just and healthy life for all persons and all peoples on Earth.

Such broad ambitions, however, contribute to the ambiguity of the concept and hinder attempts to realize these goals in particular contexts. Jorge Daniel Taillant (2004) argues that it is unclear whether the term environmental rights refers to human rights with respect to the environment, the human obligation to respect nature for its own sake, or something else. He contends that a conceptual framework based on development and more traditional forms of human rights, rather than environmental rights, can bring better practical results.

Assessment

Any assessment of environmental rights in relation to science, technology, and ethics must recognize the tenuous status of even first and second generation human rights. The Universal Declaration of Human Rights itself is simply a declaration that establishes a common standard, urging individuals and organizations to strive to promote respect for human rights and freedoms. However there do exist many environmental treaties that have well-defined, binding clauses, such as the Law of the Sea Treaty. The extent to which such environmental treaties influence the governance of science and technology is a subject deserving of further examination and development.

VICENTE BELLVER CAPELLA
TRANSLATED BY JAMES A. LYNCH

SEE ALSO Environmental Ethics; Environmental Justice; Environmental Regulation; Human Rights.

BIBLIOGRAPHY

Bellver Capella, Vicente. (1994). Ecología: de las razones a los derechos [Ecology: From reasons to rights]. Granada: Comares. Analyzes the relevance of ecophilosophies in the configuration of the human right to the environment.

Jordano Fraga, Jesús. (1994). La protección del derecho al medio ambiente [The protection of the right to the environment]. Barcelona: Bosch.

Kiss, Alexandre, and Shelton, Dinah. (2003). International Environmental Law. Ardsley, NY: Transnational Publisher.

Loperena Rota, Demetrio. (1994). El derecho al medio ambiente adecuado [The right to a sound environment]. Madrid: Civitas. The author maintains that the human right to a sound environment is not only a principle to inform the political activity but a right in the strict sense of the term.

INTERNET RESOURCES

Apple, Betsy. (2004). "Commentary on the 'Enforceability of Environmental Rights."' Carnegie Council on Ethics and International Affairs. Available from http://www.carnegiecouncil.org/viewMedia.php/prmTemplateID/8/prmID/4464.

Taillant, Jorge Daniel. (2004). "A Nascent Agenda for the Americas." Carnegie Council on Ethics and International Affairs. Available from http://www.carnegiecouncil.org/viewMedia.php/prmTemplateID/8/prmID/4461.