WHAT IS THE LAW?
The right to a healthy environment
There is no global human rights treaty which requires all countries in the world to recognise the right to a healthy environment. The official position of the United Nations (UN) is that a healthy environment is important, and may be linked to the full enjoyment of human rights, but at this stage there is no recognised right to a healthy environment. This is reflected in international case law, which typically associates a healthy environment with existing human rights to culture, private and family life, and so on.
A human right to a healthy environment is recognised in some regional treaties, and some countries have taken steps to include the right to a healthy environment in their domestic legislation. However, different countries have interpreted this right differently.
Globally binding treaties do not expressly deal with the right to a healthy environment, but some mention it in passing:
Article 12(1) of the International Convention on Economic, Social and Cultural Rights (ICESCR) requires all states to improve “all aspects of environmental and industrial hygiene“.
Article 24(1) of the Convention on the Rights of the Child (CROC) requires all states to provide adequate nutrition and water, “taking into consideration the dangers and risks of environmental pollution”.
The UN acknowledges the importance of a healthy environment. It has also recognised that a healthy environment may be linked to human rights. For example, the UN Human Rights Council has referred to climate change as “a human rights issue with human causes and consequences”. However, UN member are reluctant to concede that access to a healthy environment is a human right.
In 2012, the UN appointed an independent expert (a “Special Rapporteur”) on Human Rights and the Environment. His first report indicates that while environmental harm clearly interferes with the full enjoyment of human rights, the relationship between international human rights law and a healthy environment remains unclear. He advises that there needs to be further clarification about the scope of human rights obligations relating to the environment.
Article 11 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”) provides that:
1. Everyone shall have the right to live in a healthy environment and to have access to basic public services.
2. The States Parties shall promote the protection, preservation, and improvement of the environment
*To date 16 state parties have ratified the Additional Protocol.
Article 24 of the African Charter on Human and People’s Rights provides that “all peoples shall have the right to a general satisfactory environment favourable to their development”.
Article 38 of the Arab Charter of Human Rights provides that “every person has the right to an adequate standard of living for himself and his family, which ensures their well-being and a decent life, including food, clothing, housing, services and the right to a healthy environment. The States parties shall take the necessary measures commensurate with their resources to guarantee these rights.”
The Aarhus Convention
The Aarhus Convention is the first binding treaty that recognises that all persons have the right to a healthy environment as well as a duty to protect the environment. It is generally seen as an environmental treaty rather than a human rights treaty. It has only thus far been ratified by 47 States. The Convention is particularly strong on the idea that all people have a right to participate in decision-making about the environment. In this respect, see also Principle 10 of the Rio Declaration.
Poma Poma v Peru (2009)
In this case, Peru was found to have violated the rights of members of an Indigenous minority group under Article 27 of the International Covenant on Civil and Political Rights. The complainants raised lamas, in accordance with the cultural traditions of the Aymara community. These activities were reliant upon grazing wetlands, which were threatened by the existence of wells dug by the Peruvian government. The wells deprived local farms of water. Peru was found to have violated Article 27 by failing to consult the Aymara community about the wells, which ultimately had caused great harm to their traditional farming activities.
All cases concerned complaints by Indigenous peoples over logging projects, permitted by the Finnish government, which allegedly impinged on cultural reindeer husbandry activities. In each case, the cultural harm caused was found not to be sufficient to sustain a finding of violation against Finland. That is, Finland was found not to have breached human rights in allowing the relevant logging projects to proceed.
European Court of Human Rights
While there is no explicit protection of the right to a healthy environment under the European Convention of Human Rights, the European Court has interpreted article 8, the right to respect for private and family life, as relevant to such claims. Article 8 provides that:
1. “Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Lopez Ostra v Spain (1994)
Facts: the applicant argued that pollution from an industrial waste plant near their home damaged their health, including causing nausea, vomiting and anorexia.
Held: The Court held that Spain had not struck a fair balance between the competing interests of the applicant’s rights under the Convention and the town’s economic interest in hosting the industrial waste plant. This was the first time that the Court found a violation of article 8 on the basis of a state’s failure to manage industrial pollution.
Guerra v Italy (1998)
Facts: the applicants lived near a factory that produced fertilisers and, following an accident, 150 people were taken to hospital with acute arsenic poisoning.
Held: The Court found that severe environmental pollution can have negative impacts on a person, preventing them from enjoying their rights to privacy and family life. In the event of an accident, the applicants in this case were particularly exposed to such pollution and Italy had failed to secure their rights under Article 8 of the Convention.
Facts: the applicants in this case lived close to Heathrow airport in the UK. They complained about the increased airport noise as a result of the government’s policy on night flights, claiming that it interrupted their sleep and damaged their health.
Held: Only a relatively small number of people had suffered due to the noise and housing prices had not fallen. Therefore, the applicants could move to another area without suffering financial loss. The Court held that as such, a fair balance was struck between the competing interests so there was no violation of Article 8.
Kyrtatos v Greece (2003)
Facts: the Greek government proposed to develop a local swamp into a tourist attraction. This involved building a car park and installing nightlife. As a result, the area lost all of its scenic beauty as a natural habitat for wildlife, and there was environmental and sound pollution from the increased human activity in the area.
Held: It was not enough to show that there had been a “general deterioration of the environment” in order to sustain a complaint of a violation of human rights. The applicants had to show that the development actually had a harmful effect on themselves and their rights. In this case, there was not enough evidence to show that the development had a harmful effect on their family and private life, so there was no human rights violation.
Oneryildiz v Turkey (2004)
Facts: the applicant and his relatives lived, without authorisation, next to a rubbish tip where there was a methane gas explosion. As a result of the explosion and eruption of waste, the applicant’s house was destroyed and nine relatives were killed.
Held: Turkey had failed to warn those living near the tip of the dangers associated, and had failed to take the practical steps required to prevent the risks to their lives. Therefore, a violation of the right to life in Article 2 of the European Convention was found. This was the first time the Court decided an environmental case regarding the right to life.
Fadeyeva v Russia (2005)
Facts: the applicant argued that a large steel plant operating close to her home put her health and well-being at risk.
Held: The Court found that while the authorities had created a “buffer zone” around the plant, the applicants were housed inside the zone despite having a court order that they be relocated outside the zone. The Court held Russia had violated Article 8 by not providing an effective solution to the applicant and for not taking effective measures to reduce the pollution to acceptable levels.
Giacomelli v Italy (2006)
Facts: the applicant lived near a hazardous waste treatment plant and claimed that the emissions were harmful for her health and home.
Held: The Court held that Italy had failed to implement its own environmental legislation and that even after a domestic court ordered the plant’s operations be suspended, the authorities had not shut it down. The Court found that for years the applicant’s right to respect for her home had been seriously impaired by the plant and that Italy had not struck a fair balance between the applicant and the communities’ interests. Italy had violated Article 8.
Di Sarno and Others v. Italy (2012)
Facts: Between 1994 and 2009, there was a state of emergency in relation to waste collection, treatment and disposal in Campania region of Italy due to poor government policies. This included a suspension of waste disposal services and a period of five months where rubbish piled up in the streets.
Held: Italy had violated the right to respect for private and family life in Article 8. It had a duty to adopt reasonable and appropriate measures to safeguard the right of those concerned to a healthy and protected environment.
Herrmann v Germany (2012)
Facts: Under German law, owners of hunting grounds with a surface area of less than 75 hectares automatically become members of a hunting association. Mr. Herrmann inherited two pieces of land of less than 75 hectares each from his late mother, but he was opposed to hunting on ethical grounds. German law did not allow him to terminate his membership in the hunting association, and so he was forced to tolerate other people hunting on his property.
Held: the majority held that Germany had violated Herrmann’s right to peaceful enjoyment of his possessions. This case is interesting mainly because of Judge Albuquerque’s “partly concurring and partly dissenting opinion”, in which he notes that as part of the Germany’s commitment to ensure the human right to a healthy and sustainable environment, there was a duty to safeguard environmental and animal life.
Facts: Two company’s obtained a licence to exploit a gold mine in the vicinity of Mr Vasile and Paul Tătar (father and son) home in Romania. In 2000 an environmental accident occurred, where 100, 000 m3 of cyanide-contaminated tailings water were released into the environment. Mr Vasile Tătar filed various administrative complaints regarding the risks affecting him and his son, as well as a criminal proceeding complaining that the mining was a health hazard for the inhabitants of the area. The Ministry of Environment found that there was no public health hazard and the Romanian court discontinued Mr Tătar’s proceedings on the grounds that there was no offence.
Held: The European Court of Human Rights held that the Romanian authorities had failed to assess, to a satisfactory degree, the risks that the mining might entail, and to take suitable measures to protect the rights of the local people to have their private lives and homes respected, including their right to enjoy a healthy and protected environment, as contained under Article 8 of the European Convention on Human Rights.
Inter-American Court of Human Rights
Saramaka People v Suriname (2007)
Facts: Suriname constructed a hydroelectric dam in the territory of a tribal community, the Saramaka people. The construction caused flooding and environmental degradation, which in turn displaced many of the Saramaka people and reduced their subsistence resources.
Held: Suriname had violated the right of the Saramaka people to use and enjoy their communal property and its resources, as set out in Article 21 of the American Convention on Human Rights and in accordance with Articles 1(1) and 2 of the same Convention.
Facts: the Yakye Axa people was an Indigenous community that traditionally pursued hunting, fishing and gathering activities in their ancestral territory. The Paraguayan government moved them to another location and ordered that they could not hunt or fish in their ancestral land. The new location had a constant flow of traffic, which stirred up exhaust fumes and dust and caused respiratory diseases.
Held: The majority in the Inter-American Court of Human Rights found that Paraguay had violated the Yakye Axa people’s right to a fair trial, to property and to judicial protection, as articulated in Articles 8, 21 and 25 of the American Convention on Human Rights. In regards to the right to the people’s right to property it was found that Paraguay had a duty to ensure that the community had effective use of its traditional land and access to its traditional means of livelihood.
African Commission on Human and People’s Rights
The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria (“the Ogoniland case”) (2001)
Facts: the Nigerian government entered into an oil production venture with private companies, which exploited oil reserves, disposed toxic waste into the environment and local waterways, and caused oil spills in local villages. As a result, the villagers suffered from skin infections, neurological and reproductive problems and increased risk of cancer.
Held: Nigeria had failed to meet its obligation to protect the right to a healthy (“general satisfactory”) environment. It had a duty to take reasonable measures to prevent pollution and ecological degradation, promote conservation, and secure ecologically sustainable development and use of natural resources.
Is the right to a clean environment recognised as a human right in national jurisdictions?
As of 2012, 92 countries have included the right to a healthy environment in their constitution. In most of these countries, the right is then given effect through domestic laws – for example, laws regulating the disposal of industrial waste.
Ecuador, unusually, recognises the right of nature in its constitution. Instead of treating nature as property under the law, Chapter 7 of the Ecuador Constitution acknowledges that nature has the “right to exist, persist, maintain and regenerate its vital cycles”. This means that the ecosystem can bring a claim for violation of rights (through human representatives). For more information about the Ecuador constitution and the rights of nature, see this very engaging short video.
Some countries, such as the United States, Canada, China, Japan, Australia and New Zealand have laws to protect the environment, but maintain that there is no human right to a healthy environment. For example, in its Observations on the Relationship between Climate Change and Human Rights, the United States notes:
The United States considers a safe and sustainable environment to be an essential and shared goal – one that may further the realization of certain human rights. However, the United States does not consider that a right to a “safe environment”… exists under international law.