Groningen Journal of International Law

International Law Under Construction

Human Rights OR the Environment?

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Dr. Sumudu Atapattu | sumudu.atapattu@wisc.edu

Introduction

“Are you an Environmental Lawyer or a Human Rights Lawyer?” is a question I get asked occasionally.  As I ponder on how best to answer it, I often wonder “does it matter?” After all, we are fighting for the same things.  This question reflects a larger problem of not appreciating the link between environmental degradation and human rights. We are accustomed to compartmentalizing issues. This “silo mentality” has led to many challenges, especially in the context of climate change. Hard core environmentalists sometimes say “we don’t care about people” while some human rights advocates say “human beings are much more important than the environment.” Indeed, not all environmentalists and human rights advocates share these sentiments. However, reconciling these two extreme positions is necessary to appreciate the close relationship between the two fields.

 

So, what is the link between human rights and the environment? Many environmental issues have a direct impact on people, affecting, among other things, their health and well-being and, in extreme situations, their life. Environmental degradation also has an impact on resources essential to sustainlife – air, water and food. In many mega cities, air pollution forces people to wear masks when they go out. Many suffer from asthma. In other areas, people suffer from water scarcity and polluted water, leading to diarrhea and other water-borne diseases. Unfortunately, 6,000 children die every day due to water-related illnesses. These premature deaths are deeply tragic and preventable. Therefore, recognizing the link between environmental issues and human rights is necessary. However, international human rights law has yet to recognize the right to a healthy environment as a distinct right.

I. Emergence of environmental rights

Fortunately, regional human rights bodies – the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, the European Court of Human Rights and the African Commission on Human and Peoples’ Rights – have been much more forthcoming. National judiciaries have also adopted innovative approaches to existing rights, interpreting them expansively to include a right to a healthy environment. In addition, over 100 national constitutions include environmental rights. This “environmental rights revolution” as Professor David Boyd refers to is a significant development and has influenced the development of environmental rights at the international level.

The relationship between human rights and environment is two-fold – the enjoyment of human rights can be directly affected by environmental degradation. Moreover, human beings depend on nature for the services it provides – purifying air, water, decomposition of waste, etc. Similarly, there could be ecological limitations to human rights.

II. National developments and environmental rights

Ironically, two distinct developments at the national levelcontributed to the convergence of the two fields at the international level. The first development is the environmental impact assessment process, which is subject to public participation in many countries. Environmental Impact Assessment documents are often considered public documents and national legislation provide for public participation through comments, public hearings, etc. This process incorporated the procedural rights that are recognized under international human rights law – access to information, public participation and access to remedies. Referred to as environmental democracy or access rights, these three rights have been incorporated in international environmental law and are now reflected in two regional treaties covering Europe and Latin America.

The second development is the environmental justice movement in the US, which was a direct response to the practice of locating polluting and hazardous activities in areas of low income and minority communities. These polluting activities had a huge impact on the lives of people and impinged on their rights. Even today, one may find many examples of low income and minority communities in the US that being disproportionately affected by pollution, environmental degradation including climate change, and severe weather events: Hurricane Katrina, Kivalina and Shishmarof in Alaska, Isle de Jean Charles which is being relocated to the mainland, and the water crisis in Flint, Michigan are a few examples.

III. Indigenous rights

Another area where the convergence between human rights and environment has taken place is in relation to indigenous peoples. Indigenous peoples have an intimate relationship with their land and their cultures relate closely to such land. Environmental degradation impacts severely their protected rights, in addition to their culture and sometimes even their very survival. In 2005, the Inuit of US and Canada brought a petition before the Inter-American Commission on Human Rights against the US as the largest emitter of greenhouse gases at that time. Although the petition was later dismissed, it was the first human rights case to be brought in relation to climate change, which was a catalyst in the fight to get human rights included in climate negotiations. As a result of this (and other efforts by small island states), the UN Human Rights Council requested the Office of the High Commissioner for Human Rights to prepare a report on the link between climate change and human rights. The Paris Agreement finally included a reference to human rights in 2015, although not without a fight.

Despite a slow start, the UN galvanized into action: The Human Rights Council appointed an Independent Expert on Human Rights and the Environment in 2012, whose mandate extended and converted to a special rapporteur position in 2015. The first Special Rapporteur, Professor John Knox, appended a set of draft articles called “Framework Principles on Human Rights and the Environment” to his final report. The current Special Rapporteur, Professor David Boyd, who was appointed in 2018, has already submitted a report to the UN General Assembly and a report to the Human Rights Council on air pollution and human rights.

IV. Latest developments

The latest development is a call by the UN High Commissioner for Human Rights, Michelle Bachelet to take urgent action on climate change as it undermines rights, development and peace and that “all people, everywhere, should be able to live in a healthy environment and hold accountable those who stand in the way of achieving it.” In another development, the UN Human Rights Committee, in a communication referred to it, found an “undeniable link” between environmental protection and human rights while five UN human rights treaty bodies issued a joint statement recently on human rights and climate change.

Conclusion

These are indeed positive developments. It is hoped that the international community will adopt a right to a healthy environment as a justiciable right at the international level before long, at least initially as a UN General Assembly resolution. Ultimately, many of our protected rights become meaningless if we do not live in a healthy environment. Adverse consequences associated with climate change, which already affect millions of people around the world and may compel millions to move from their homes, may well be the turning point that forces us to do so. At a time when even inanimate objects, such as rivers and corporations are accorded rights, why is the international community reluctant to recognize a right to a healthy environment for human beings?

AtapattuSumudu Atapattu, PhD (Cambridge) is the Director of Research Centers and International Programs at the University of Wisconsin Law School. She teaches “International Environmental Law” and “Climate Change, Human Rights and the Environment.” She is affiliated with UW-Madison’s Nelson Institute for Environmental Studies and the Center for South Asia as the Executive Director of the Human Rights Program.  She serves as the Lead Counsel for Human Rights at the Center for International Sustainable Development Law, Montreal, and is affiliated faculty at the Raoul Wallenberg Institute for Human Rights, Sweden. She recently finished her latest book The Cambridge Handbook on Environmental Justice and Sustainable Development (co-editor, CUP, forthcoming).

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