Environmental human rights: Its evolution

Dr Maibam Dhanaraj Meitei *

Right to a healthy environment as a universal human right is heavily debated and criticized from both a theoretical and an operational perspective. There are numerous disputes regarding the definition of the right, the critical points being whether this right can be justiciable and enforceable at international level.

The Stockholm Conference on the Human Environment (1972) represents the first international effort to put environmental issues on the global agenda. It pinpointed the importance of extensive and concerted international cooperation to provide necessary resources to contribute to environmental preservation while improving the quality of life for the world’s people.

Stockholm’s key terms – human environment, well being for present and future generations, quality of life, economic development, responsibility and cooperation – established the main concepts of the following debates on the environment. Environment was no longer seen as a more synonym of nature, but is a more complex notion encompassing nature and its interdependent, but also potentially inverse relationship with human beings and human activities.

In 1982, the World Charter for Nature adopted by the UN General Assembly established the concept of the rights of nature, identifying the global environmental needs for substantive and procedural protection from the adverse impacts of development.

It represents procedural rights, highlighting its collective character and enhancing justiciability for environmental damage as a subject of redress (principle 23), and emphasized on the conservation of nature and natural resources, thus aiming to provide a philosophical and political framework to guide worldwide conservation efforts.

In December 1987, the World Commission on Environment and Development published the Brundtland Report, “Our Common Future”, marks a shift objectifying nature and entrenching the economic worldview of sustained economic growth to redress poverty and environmental degradation.

While the World Charter for Nature emphasized natural resources conservation, the World Commission on Environment and Development emphasized more efficient use of scarce resources. The fundamental shift from the World Charter for Nature and World Commission on Environment and Development approach to address environmental problems might be justified by the adoption of the Declaration on the Rights to Development in 1986, which affected subsequent conceptualizations of, and agreements on, environment and human rights.

The UN Conference on Environment and Development or Rio Conference (1992) brought several new elements into the environmental debates, addressing the dilemma of poverty and the call for differential treatment by advancing a principle of solidarity in cooperation – the principles of common but differentiated responsibility.

However, despite the use of obligatory language and the degree of consensus reached on international norms for environmental protection, the Rio Declaration has been criticized for failing to recognize a healthy environment as a basic human right, departing from the Stockholm pathway that had established a human right approach.

In July 1994, the Ksentini Report was submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, to establish what legal framework exists to address emerging global concerns and to explore possible further developments of a right to a healthy and flourishing environment.

Relying on the concepts of human rights indivisibility and interdependence, it stresses the relation between poverty, development, enjoyment of human rights and environmental degradation. The special repporteur concludes that a recognition of the global dimension of the environmental issues contributed to a shift from environmental law to the right to a healthy and decent environment.

Ksentini highlights how a right to a healthy environment would add value to human rights bringing a new dimension and going beyond reductionist concepts to “achieve a coalescence of the common objectives of development and environmental protection”.

The report contains the Draft Declaration on Human Rights and the Environment, “the first international instrument that comprehensively addresses the linkage between human rights and the environment”, giving environmental human rights an autonomous character which they lack in current international law.

The Draft Declaration affirms that “all persons have the right to a secure, healthy and ecologically sound environment adequate to meet equitably the needs of present and future generations, reaffirming the principle of equality and non-discrimination, as well as the principle of solidarity”. However, the Ksentini report did not receive a favourable response from the United Nations agencies and states and the Draft Declaration was never adopted.

Coming to the Indian scenario, the Constitution of India (1950) did not include any specific provision relating to environment protection or nature conservation. The first development took place when the Constitution (42nd Amendment) Act 1976, was adopted.

Specific provisions related to certain aspects of the environment, more specifically for the protection of the forests and wildlife in the country was incorporated in Part IV – Directive Principles of the State Policy and List III – the Concurrent List – of the Seventh Schedule of the Constitution.

It resulted in the incorporation of the provisions in the Indian Constitution:
Part IV: Directive Principles of State Policy (Article 48A): Protection and improvement of the environment and safeguarding of forests and wildlife: The state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.

Part IV-A: Fundamental Duties (Article 51A): It shall be the duty of every citizen of India – (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.

Seventh Schedule (Article 246) List III – Concurrent List, Item no. 17: Prevention of cruelty to animals, Item no. 17A: Forests, and Item no. 17B: Protection of wild animals and birds. However, the Constitution is deficient in that it doesn’t not explicitly provide for the citizen’s right to a clean and safe environment.

At present, there is a wide consensus in considering environmental protection as a pre-requisite to the enjoyment of internationally established human rights, especially the right to life, right to an adequate standard of living, right to health and right to privacy.

In today’s environment, having the knowledge of nature is a must for healthy survival. Living implies an understanding of the current issues and challenges we face at the real time in our environment and the ability to evolve sustainable solutions for the problems that will protect the human’s right to life with right to a healthy environment.