Worldview Commentary No. 295 on Chicago Public Radio, 91.5 FM WBEZ

Author: Susan Good

“Earth Day 2009: A Human Right to a Decent Environment?”

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Does international law recognize a human right to a decent environment? Should it?

The question is more complicated than it might seem. The concept of human rights is human-centered. For the law to protect the environment, by declaring it a human right, could be understood to mean that the case for our planet turns on whether it happens to accommodate us.

But what of the other species who inhabit this earth along with us – do they not have claims too? And what of Mother Earth herself? Is she not entitled to reverence and respect on her own account – independently of whether she happens to serve our needs?

A further tension between human and environmental rights has to do with timing. Human rights protect human beings in the here and now. To the extent environmental protection is meant to protect people, however, it is at least as much to protect future as present generations.

So human rights as conventionally understood, i.e., as the rights of people now living, are not abroad enough to encompass all the claims – of other species, of the planet, and of future generations – that together lend force to the environmental cause.

The inaugural document of the international environmental movement attempted to bridge this gap. The Stockholm Declaration of the 1972 United Nations Conference on the Human Environment treated the environment as both a human right and a human responsibility. It proclaimed, “Man has the fundamental right to … adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being …”

It added, however, that man “bears a solemn responsibility to protect and improve the environment for present and future generations …” This “solemn responsibility” could be read to respect the claims of other species and of the planet.

Later international documents, however, make plain that the right to a decent environment is human centered. The 1992 Rio Declaration on Environment and Development could not be clearer. Its first principle asserts, “Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.”

In international law, then, if not necessarily in philosophy, laws protect the environment in order to protect people. Humankind is the end, the environment the means.

Even so, international human rights law has had difficulty enshrining a human right to a decent environment. It is one thing to declare the right in diplomatic documents like the Stockholm and Rio declarations. It is another to define it in legally binding treaties. What exactly would a human right to a decent environment mean? For example, do I have a right to demand cleaner auto emissions? If so, how much cleaner?

Issues like these have thwarted efforts at the global level to define a legally enforceable human right to a decent environment. To the extent UN human rights documents recognize a right to a decent environment, they do so either as a limit on another human right – such as the right to development – or as a necessary or helpful condition for another right – such as the right to health, or the right of indigenous peoples to keep their traditional ways of life on their traditional lands.

Regional human rights treaties have been more adventurous, expressly declaring a right to a sound environment. The African Charter on Human and Peoples’ Rights, to which more than fifty African nations are parties, declares, “All peoples shall have the right to a general satisfactory environment favourable to their development.”

The African right is stated as a collective or group right – the right of “all peoples.” In contrast, an Inter-American treaty declares an individual human right to a healthful environment. The Protocol of San José, joined to date by twenty-five Latin American and Caribbean nations, proclaims, “Everyone shall have the right to live in a healthy environment …”

Neither regional treaty, however, appears to be individually enforceable. Individuals have no direct right under the environmental article of the African Charter; only peoples do. And the San José Protocol provides for enforcement of some rights by individual complaints, but not for its environmental right.

Nonetheless, regional human rights courts have been creative in allowing environmental claims as means to enforce other human rights. For example, the European Court of Human Rights has treated air pollution from a neighboring industrial site as an invasion of the right to privacy of a homeowner.

The Inter-American Court of Human Rights requires governments to conduct environmental impact statements of development projects that could infringe on the communal property rights of indigenous groups. The impact studies must be done, not only to determine the objective impacts, but also to inform indigenous peoples as to whether they should consider allowing development on their land. The Court even specifies that the studies must be done by “independent and technically capable entities.”

Obstacles remain, but the trend is clear: international human rights bodies are likely to be ever more receptive to environmental claims. Even if Mother Nature cannot sue, her children may.

Doug Cassel’s commentaries are generally broadcast Wednesdays during the noon hour of the Worldview program on Chicago Public Radio, WBEZ 91.5 FM, and rebroadcast at 9 PM in the evening. Views expressed are personal views of the author and not necessarily those of Notre Dame Law School, the Center for Civil and Human Rights or Chicago Public Radio.