REMARKS OF PROFESSOR DINAH SHELTON

UNIVERSITY OF NOTRE DAME LAW SCHOOL

 

AT THE HEARING BEFORE THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS ON THE EFFECTS OF ENVIRONMENTAL DEGRADATION ON

THE EXERCISE AND ENJOYMENT OF HUMAN RIGHTS IN THE HEMISPHERE

 

 

WEDNESDAY, OCTOBER 16, 2002 -  11:00 A.M.

            I would like to thank the Inter-American Commission for allowing this opportunity to address the important matter of the links between human rights and environmental protection.

For more than thirty years, the global community has recognized the interdependence of environmental protection and the enjoyment of internationally-guaranteed human rights.  The first United Nations Conference on the Human Environment expressed this link in Principle 1 of the Stockholm Declaration:  “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. . .”  Ten years ago, the United Nations Conference on Environment and Development, held in Rio de Janeiro, reiterated that human beings are “entitled to a healthy and productive life in harmony with nature.”  The General Assembly similarly has called the preservation of nature “a prerequisite for the normal life of man.”[1]

            These texts express the reality that environmental protection is essential to the enjoyment of human rights, to a life of dignity and well-being. The Rio Declaration also added an important dimension by affirming the reverse relationship: that the full enjoyment of human rights is essential to environmental protection.  Its Principle 10 underlines that environmental protection cannot be achieved unless all concerned citizens have access to information concerning the environment, the opportunity to participate in decision-making processes, and effective access to judicial and administrative proceedings, including redress and remedy for environmental harm.  These rights of information, participation in public affairs, and access to justice are thus not only inherently necessary as internationally-recognized human rights, they are instrumental in ensuring a safe and health environment, which in turn enables the exercise of other rights.

At the World Summit on Sustainable Development, held in Johannesburg, South Africa, between 26 August and 4 September 2002, the international community reaffirmed its commitment to sustainable development and pledged to halve by 2015 the proportion of the world’s people whose income is less than $1 a day, the proportion of people who suffer from hunger, and the proportion of people without access to safe drinking water. 

Achieving these goals will require respect for human rights and at the same time will guarantee other rights.  Pollution of water and air destroys the health of millions of people; depletion of fish stocks increases hunger and malnutrition; desertification eliminates food crops.  Individuals are arbitrarily deprived of life by poisoned water and lack of sanitation just as surely as if they are summarily shot.  These are avoidable deaths. 

*****

In the three decades since the Stockholm Conference, international legal instruments and the decisions of human rights bodies have reformulated and elaborated the links between human rights and environmental protection.  Three approaches are evident.  The first approach, perhaps closest to that of the Stockholm Declaration, understands environmental protection as necessary to the enjoyment of internationally-guaranteed human rights.  Environmental protection is thus an essential instrument in the effort to secure the effective universal enjoyment of human rights.  Every intergovernmental human rights body, regional and global, has concluded that internationally-guaranteed rights may be violated by environmental degradation.  To mention a few examples from outside the Inter-American system:

United Nations Human Rights Committee

·        EHP v. Canada.  In an early case, a group of Canadian citizens alleged that the storage of radioactive waste near their homes threatened the right to life of present and future generations.  The Committee found that the case raised “serious issues with regard to the obligation of States parties to protect human life,” but declared the case inadmissible due to failure to exhaust local remedies.[2]

·        Bordes and Temeharo v. France.  Petitioners asserted the risk of harm from nuclear radiation due to nuclear testing by France in the South Pacific.[3]  The Committee found the case inadmissible on the ground that the claimants did not qualify as “victims” of a violation.

·        Ilmari Lansman et al. v. Finland. The Committee found that Article 27 was not violated by the extent of stone-quarrying permitted by Finland in traditional lands of the Sami.[4]  The Committee observed that a state may wish to encourage development or economic activity, but found that the scope of its freedom to do so must be tested by reference to the obligations of the state under article 27.  The Committee referred to its General Comment on Article 27, according to which measures must be taken “to ensure the effective participation of members of minority communities in decisions which affect them.” The Committee concluded that the amount of quarrying that had taken place did not constitute a denial of the applicants’ right to culture.  It noted that they were consulted and their views taken into account in the government’s decision and that measures were taken to minimize the impact on reindeer herding activity and on the environment.[5]

·        Apirana Mahuika et al v. New Zealand[6].  The communication claimed violations of the rights of self-determination, right to a remedy, freedom of association, freedom of conscience, non-discrimination, and minority rights as a result of New Zealand’s efforts to regulate commercial and non-commercial fishing in light of a dramatic growth of the fishing industry. The government and the Maori, whose rights are guaranteed by the Treaty of Waitangi, executed a Deed of Settlement in 1992 to regulate all fisheries issues between the parties.  The authors of the communication represented tribes and sub-tribes that objected to the Settlement, contending that they had not been adequately informed and that the negotiators did not represent individual tribes and sub-tribes.  The government acknowledged its duty to ensure recognition of the right to culture, including the right to engage in fishing activities, but argued that the Settlement met the obligation because the system of fishing quotas reflected the need for effective measures to conserve the depleted inshore fishery, carrying out the government’s “duty to all New Zealanders to conserve and manage the resource for future generations” “based on the reasonable and objective needs of overall sustainable management.”     The Committee emphasized “that the acceptability of measures that affect or interfere with the culturally significant economic activities of a minority depends on whether the members of the minority in question have had the opportunity to participate in the decision-making process in relation to these measures and whether they will continue to benefit from their traditional economy.”  The complicated process of consultation undertaken by the government was held to comply with this requirement, because the government paid special attention to the cultural and religious significance of fishing for the Maori.

European Court of Human Rights

In the European human rights system, cases have been brought demonstrating the impact of environmental harm on the right to privacy and family life (art. 8), or invoking the right to information (art. 10).  Decisions of the former Commission and the present Court indicate that environmental harm attributable to state action or inaction that has significant injurious effect on a person’s home or private and family life constitutes a breach of Article 8(1).  The harm may be excused under Article 8(2) if it results from an authorized activity of economic benefit to the community in general, as long as there is no disproportionate burden on any particular individual; i.e. the measures must have a legitimate aim, be lawfully enacted, and be proportional. 

Noise Pollution Cases.  Most of the early European privacy and home cases involved noise pollution.  In Arrondelle v. United Kingdom,[7] the applicant complained of noise from Gatwick Airport and a nearby motorway.  The application was declared admissible and eventually settled.[8]  The settlement left unresolved numerous issues, some of which were addressed by the Court in Powell & Raynor v. United Kingdom.[9]  The Court found that aircraft noise from Heathrow Airport constituted a violation of Article 8, but was justified under Article 8(2) as “necessary in a democratic society” for the economic well-being of the country.  Noise was acceptable under the principle of proportionality, if it did not “create an unreasonable burden for the person concerned,” a test that could be met by the State if the individual had “the possibility of moving elsewhere without substantial difficulties and losses.”[10]  More recently, in Hatton and Others v. The United Kingdom, judgment 2 October 2001, a Chamber of the European Court found that the noise from increased flights at Heathrow airport between 4 a.m. and 6 a.m. violated the rights of the applicants to respect for their home and family life, in large part because the sleep deprivation this caused raised heath concerns.  According to the Court, in balancing individual rights and the general welfare, the State cannot simply refer to the economic well-being of the country “in the particularly sensitive field of environmental protection.”  Instead, the State is required to minimize the interference by trying to find alternative solutions and by generally seeking to achieve their aims in the way least burdensome to human rights.  The Court also found a violation of article 13 (right to a remedy) and awarded compensation to the applicants.  A separate opinion of Judge Costa speaks directly of “the right to a healthy environment” noting that “since the beginning of the 1970s, the world has become increasingly aware of the importance of environmental issues and of their influence on people’s lives.” 

·        Air pollution: Lopez-Ostra v. Spain.  The major decision of the Court on environmental harm as a breach of the right to private life and the home is Lopez-Ostra v. Spain.[11]  The applicant and her daughter suffered serious health problems from the fumes of a tannery waste treatment plant which operated alongside the apartment building where they lived.  The plant opened without a required license and without having followed the procedure for obtaining one.  The applicant was eventually forced to move due to the pollution levels.  The Court noted that severe environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life.  It found that the determination of whether this violation had occurred should be tested by striking a fair balance between the interest of the town's economic well-being and the applicant's effective enjoyment of her right to respect for her home and her private and family life.  The Court found that the state exceeded its “margin of appreciation” and awarded compensation.

In Anna Maria Guerra and 39 others against Italy[12] the applicants complained of pollution resulting from operation of a chemical factory situated near their town; the risk of major accidents at the plant; and the absence of regulation by the public authorities.  Invoking Article 10 (freedom of information), the applicants asserted in particular the government's failure to inform the public of the risks and the measures to be taken in case of a major accident, prescribed by the domestic law transposing the EC ‘Seveso’ directive.[13]  A Grand Chamber of the European Court of Human Rights subsequently heard the case and unanimously found a violation of Article 8, the right to family, home and private life, noting that the individuals waited throughout the operation of fertilizer production at the company for essential information “that would have enabled them to assess the risks they and their families might run if they continued to life at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory.”  Citing the Lopez Ostra case, the Court reiterated that “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life.”[14]   

Article 6 cases.  In the European system, Article 6,[15] which provides judicial guarantees of a fair trial, has been construed as including a right of access to justice.[16]   Applicability of Article 6 depends upon the existence of a dispute concerning a right recognized in the law of the state concerned, including those created by licenses, authorizations and permits that affect the use of property or commercial activities.[17]  In Oerlemans v. Netherlands[18] Article 6 was deemed to apply where a Dutch citizen could not challenge a ministerial order designating his land as a protected site.   In Zander v. Sweden,[19] Article 6 applied to persons who had been denied a remedy for threatened environmental harm resulting from contamination of their well water by cyanide from a neighboring dump site.  The municipality furnished temporary water supplies but subsequently raised the permissible level of cyanide and halted the city supply.  When the company maintaining the dump site sought a renewed and expanded permit, the applicants argued that the threat to their water supply would be sufficiently high that the company should be obliged to provide free drinking water if pollution occurred.  The board granted the permit and denied the applicants’ request.  They sought but could not obtain judicial review of the decision.  The Court found a violation of Article 6.

·        The right to a remedy extends to compensation for pollution.  In Zimmerman and Steiner v. Switzerland[20], the Court found Article 6 applicable to a complaint about the length of proceedings for compensation for injury caused by noise and air pollution from a nearby airport.

African Charter on Human and Peoples Rights 

The cases submitted to the African system have generally invoked the right to health, protected by Article 16 of the African Charter, rather than the right to environment contained in the same document.  In Communications 25/89, 47/90, 56/91 and 100/93 against Zaire the Commission held that failure by the Government to provide basic services such as safe drinking water constituted a violation of Article 16.[21]

Most recently and dramatically, in Decision regarding Communication 155/96,[22] Nigeria was found to have violated the right to enjoy Charter-guaranteed rights and freedoms without discrimination (Article 2), the right to life (Article 4), the right to property (Article 14), the right to health (Article 16), the right to housing (implied in the duty to protect the family, Article 18(1)), the right to food (implicit in Articles 4, 16, and 22), the right of peoples to freely dispose of their wealth and natural resources (Article 21), and the right of peoples to a “general satisfactory environment favorable to their development” (Article 24). Most of the violations stemmed from actions taken by or involving the Nigerian National Petroleum Development Company (NNPC) in a consortium with Shell Petroleum Development Corporation (SPDC).

The Communication alleged: that the military government of Nigeria was involved in oil production through NNPC in consortium with SPDC and that the operations produced contamination causing environmental degradation and health problems; that the consortium disposed of toxic wastes in violation of applicable international environmental standards and caused numerous avoidable spills near villages, consequently poisoning much of the region’s soil and water; that the government aided these violations by placing the state’s legal and military powers at the disposal of the oil companies; and that the government executed Ogoni leaders and, through its security forces, killed innocent civilians and attacked, burned, and destroyed villages, homes, crops, and farm animals. The Communication also alleged that the government failed to monitor the activities of the oil companies, provided no information to local communities, conducted no environmental impact studies, and prevented scientists from undertaking independent assessments.

On the merits, the Commission first analyzed what is generally expected of governments under the Charter. It acknowledged four separate but overlapping duties with respect to guaranteed rights: to respect, protect, promote, and fulfill them. According to the Commission “[t]hese obligations universally apply to all rights and entail a combination of negative and positive duties.”[23]

Respect entails refraining from interference with the “enjoyment of all fundamental rights.”[24] With regard to socioeconomic rights, in particular, respect means that

[t]he State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs.[25]

Protection of rights requires legislation and provision of effective remedies to ensure that rights-holders are protected “against other subjects” and “political, economic, and social interferences.”[26] Promotion involves such actions as “promoting tolerance, raising awareness, and . . . building infrastructures.”[27] Finally, fulfillment of rights and freedoms requires the state to move its “machinery” toward the actual realization of rights—for example, by directly providing, as necessary, “basic needs such as food or resources that can be used for food (direct food aid or social security).”[28] Since states are “generally burdened” with the four above duties in committing themselves to human rights instruments,[29] it was incumbent on the Commission to take these duties into account in assessing the Communication’s allegations in relation to the African Charter and “the relevant international and regional human rights instruments and principles.”[30]

The Commission first assessed the claimed violations of the rights to health (Article 16) and to a general satisfactory environment (Article 24). In coupling the two rights, the Commission—quoting an article by Alexandre Kiss on the “right to environment”[31]—recognized that a “clean and safe environment . . . is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual.”[32] It found that the right to a general satisfactory environment “imposes clear obligations upon a government,” requiring the state “to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources.”[33] Moreover,

[g]overnment compliance with the spirit of Articles 16 and 24 of the African Charter must also include ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.[34]

Applying these obligations to the facts of the case, the Commission concluded that although Nigeria had the right to produce oil, it had not protected the Article 16 and Article 24 rights of those in the Ogoni region.

The benefits of developing the oil reserves were also in question in the case. The Commission found that, taken together, the lack of involvement of the Ogoni people, the destructive role played by oil development, the repressive tactics of the government, and the lack of material benefits accruing to the local population “may well be said” to constitute a violation of the Ogoni people’s Article 21 rights concerning the disposal and use of wealth and natural resources. The Commission traced the origin of this provision to the aftermath of colonial exploitation, which, it said, left Africa’s resources and people vulnerable to foreign misappropriation. Article 21 thus requires the government to protect its citizens from damaging acts by private parties.[35] The Nigerian government failed to protect as required, and fell short of the minimum conduct expected of governments: it “facilitated the destruction of the Ogoniland” by “giv[ing] the green light to private actors, and the oil Companies in particular, to devastatingly affect the well-being of the Ogonis.”[36]

The Commission read the guarantees of the African Charter broadly to find implicit rights to housing and to food. Reasoning that “when housing is destroyed, property, health, and family life are adversely affected,” the Commission deemed the right to housing, or at least the right to be free from the “wanton destruction of shelter,” to be the corollary of combining the right to health, the right to property, and the protection accorded to the family.[37] Thus, at a minimum, the state must neither destroy housing nor obstruct efforts by individuals to rebuild lost homes. Further, the state’s obligation to respect housing rights requires it to abstain from carrying out, sponsoring, or tolerating any practice, policy, or legal measure that interferes with an individual’s ability to use material and other resources available to satisfy individual, family, household, or community housing needs.[38] It requires the state both to prevent nonstate actors, including property developers, from violating any individual’s right to housing, and to provide access to legal remedies if such violation occurs. The right to adequate housing also encompasses the right to protection against forced evictions.[39]

The Commission found that the government, by destroying Ogoni houses and villages, and by then obstructing and harassing those who attempted to return or rebuild their homes, engaged in “massive violations of the right to shelter.”[40] It also found that the government engaged in forced evictions in violation of this right “enjoyed by the Ogonis as a collective right.”[41]

In a manner that paralleled its analysis of the right to housing, the Commission deemed the right to food to be implicitly guaranteed by the African Charter—inseparably linked to the dignity of human beings and therefore essential for the enjoyment and fulfillment of other rights, such as health, education, work, and political participation. The “minimum core” of the right to food, held violated by Nigeria in this case, requires that the government not destroy or contaminate food sources, allow private parties to do so, or through terror create significant obstacles to undermine peoples’ efforts to feed themselves.[42]

Finally, the Commission found that the government and the oil companies violated the Article 4 right to life by engaging in widespread “terrorisations and killings.”[43] In addition, “the pollution and environmental degradation to a level humanly unacceptable has made living in [Ogoniland] a nightmare”[44] not only for specific individuals, but for the whole of the Ogoni community.

The Commission concluded its analysis by emphasizing that collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa, that the Commission intended to apply them, and that “there is no right in the African Charter that cannot be made effective.”[45] While governments may labor under difficult circumstances in trying to improve the lives of their peoples, they must reconsider their relationships with multinational corporations if these relationships fail to be mindful of the common good and of the rights of individuals and communities. The Commission called on the Nigerian government to stop all attacks on Ogoni communities; to allow independent investigators free access to the territory to conduct an investigation into the human rights violations that occurred; to prosecute those responsible for any such violations; to ensure adequate compensation for victims of violations, including a comprehensive cleanup of lands and rivers damaged by oil operations; to ensure that appropriate environmental and social assessments are prepared for future oil operations and that effective and independent oversight bodies exist for the petroleum industry; and, for communities likely to be affected by oil operations, to provide information on health and environmental risks, and meaningful access to regulatory and decision-making bodies.

Taken together, these cases demonstrated that environmental degradation does involve human rights violations.

*****

The second rights-based approach, developed since Rio and now most common in international environmental agreements since 1992, views certain human rights as essential elements to achieving environmental protection.  Many environmental agreements today include provisions that insist upon rights of information, participation and redress, as the most effective means to ensure quality environmental decision-making.  However, and this is important to explain the indispensable need for human rights bodies to consider these issues, only one environmental agreement contains any procedure by which victims of environmental harm may be heard.  Only NAFTA’s North American Commission on Environmental Protection may receive communications, under a limited mandate.[46] 

The third, and most recent approach views the links as indivisible and inseparable and thus posits the right to a safe and healthy environment as an independent substantive human right.  The American Convention Protocol on Economic, Social and Cultural Rights of course adopts a provision containing such a right.  Most formulations of the right to environment qualify it by words such as “healthy”, “safe”, “secure” or “clean”, making explicit the link between environmental protection and human well-being.

            The three approaches are not contradictory, but indeed reflect the complex reality of interdependence between environmental protection and the enjoyment of internationally-recognized human rights.  The Commission has an important, indeed indispensable role to play in supervising the implementation of human rights and thus of the environmental conditions that may destroy or allow those rights to be fully exercised by all individuals in the hemisphere.

            Thank you very much.

 


[1]  GA Res. 35/48 of 30 Oct. 1980.

[2]  Communication No. 67/1980, EHP v. Canada, 2 Selected Decisions of the Human Rights Committee (1990), 20.    See also Kitok v. Sweden, Communication No. 197/1985, II Official Records of the Human Rights Committee 1987/88, U.N. Doc. CCPR/7/Add.1, at 442 (Swedish 1971 Reindeer Husbandry Act held not to violate rights of an individual Sami as a reasonable and objective measure necessary for the continued viability and welfare of the minority as a whole).

[3]  Communication No. 645/1995, Bordes and Temeharo v. France, CCPR/C/57/D/645/1995, 30 July 1996.

[4]  Communication No. 511/1992, Ilmari Lansman et al. v. Finland, Human Rights Committee, Final Decisions, 74, CCPR/C/57/1 (1996).

[5]  Other cases involving Sami reindeer breeders include Communication No. 431/1990, O.S. et al. v. Finland, decision of 23 March 1994, and Communication No. 671/1995, Jouni E. Lansmann et al. v. Finland, decision of 30 October 1996.

 

[6]  Communication No. 547/1992, Apirana Mahuika et al v. New Zealand, CCPR/C/70/D/547/1993, views issued November 16, 2000.

[7]  Arrondelle v. United Kingdom, (1980)19 DR 186; (1982) 26 DR 5.

[8]    Baggs v. United Kingdom, a similar case, was also resolved by friendly settlement.   Baggs v. United Kingdom, (1985) 44 DR 13; (1987) 52 DR 29.

[9]  Powell and Rayner v. United Kingdom, ECHR (1990) Series A, No. 172.

[10]  Contrast the Vearncombe case, where the Commission found that the level and frequency of the noise did not reach the point where a violation of article 8 could be made out and therefore the application was inadmissible. Vearncombe et al. v. United Kingdom and Federal Republic of Germany (1989), 59 DR 186.

[11]  Lopez-Ostra v. Spain, ECHR (1994), Series A, No. 303C.

[12]  Case 14967/89, Guerra and Others v. Italy, 1998-1 ECHR, Judgment of 19 February 1998.

[13]  EEC Directive on the Major Accident Hazards of Certain Industrial Activities, 82/501/EEC, 1982 O.J. 230, amended by 87/216/EEC, 19 March 1987.  The “Seveso” law required disclosure of the production process; the substances present and their quantities; possible risks for employees, workers, the population and the environment; security measures, and rules to follow in case of accident.  Other laws supplemented the right to environmental information.

[14]  Ibid. para. 60. The Court appears to have strained to avoid overturning its prior case law interpreting Article 10.  The basis of the complaint was the government’s failure to provide environmental information, not pollution like that found in the Lopez-Ostra case. 

[15]  Article 6, para. 1 states: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

[16]  Golder v. United Kingdom, ECHR (1975), Series A, No. 18; Klass v. Germany, ECHR (1978), Series A, No. 28.

[17]  Benthem v. Netherlands, ECHR (1985), Series A, No. 97.

[18]  Oerlemans v. Netherlands, ECHR (1991), Series A, No. 219.

[19]  Zander v. Sweden, ECHR (1993), Series A, No. 279B.

[20]  Zimmerman and Steiner v. Switzerland, ECHR (1983), Series A, No. 66.

[21]  The finding followed the consolidation of 4 communications asserting torture, killings arbitrary detention, unfair trials, restrictions on the right to association and peaceful assembly, suppression of freedom of the press, denial of the right to education and the right to health.  In regard to the latter the Commission said “Article 16 of the African Charter states that every individual shall have the right to enjoy the best attainable state of physical and mental health, and that States Parties should take the necessary measures to protect the health of their people.  The failure of the Government to provide basic services such as safe drinking water and electricity and the shortage of medicine as alleged in communication 100/93 constitutes a violation of Article 16.”  AHG/207(XXXII), Annex VIII at 8.

[22] Decision regarding Communication 155/96 (Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria), Case No. ACHPR/COMM/A044/1 (Afr. Comm’n Hum. & Peoples’ Rts. May 27, 2002), at <http://www.umn.edu/humanrts/africa/comcases/allcases.html> [hereinafter Decision].

[23] Id., para. 44 (citing Asbjørn Eide, Economic, Social and Cultural Rights as Human Rights, in Economic, Social and Cultural Rights: A Textbook 21 (Asbjørn Eide, Catarina Krause, & Allan Rosas eds., 1995) [hereinafter Economic, Social and Cultural Rights]).

[24] Id., para. 45.

[25] Id.

[26] Id., para. 46.

[27] Id.

[28] Id., para. 47 (citing Eide, supra note 9, at 38).

[29] Id., para. 48.

[30] Id., para. 49. The African Charter provides that the Commission shall draw inspiration from international law on human and peoples’ rights, including the Universal Declaration of Human Rights and other UN instruments, the instruments of specialized agencies, and, as subsidiary measures to determine the principles of law, other general or special international conventions, African practices consistent with international norms on human and peoples’ rights, general principles of law, and legal precedents and doctrine. African Charter on Human and Peoples’ Rights, supra note 1, Arts. 60, 61.

[31] Decision, supra note 2, para. 51 (quoting Alexandre Kiss, The Concept and Possible Implications of the Right to Environment, in Human Rights in the Twenty-First Century: A Global Challenge 551, 553 (Kathleen Mahoney & Paul Mahoney eds., 1993)).

[32] Id., para. 51 (citing UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health, UN Doc. E/C.12/2000/21 (2000)).

[33] Id., supra note 2, para. 52.

[34] Id., para. 53.

[35] On this point, the Commission cites not only its own decision in Commission Nationale des Droits de l’Homme et des Libertes de la Federation Nationale des Unions de Jeunes Avocats de France v. Chad, Communication No. 74/92, Ninth Activity Report 1995–1996, Annex VIII (African Comm’n Hum. & Peoples’ Rts.), reprinted in Documents of the African Commission on Human and Peoples’ Rights 449 (Rachel Murray & Malcolm Evans eds., 2001), but also jurisprudence of other human rights bodies: Velàsquez Rodríguez v. Honduras, Inter-Am. Ct. H.R. (ser. C) No. 4 (1988), and X & Y v. Netherlands, 91 Eur. Ct. H.R. (ser. A) at 32 (1985).

[36] Decision, supra note 2, para. 58.

[37] Id., para. 60. The African Charter recognizes right to property in Article 14 (“The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.”), the right to health in Article 16 (“Every individual shall have the right to enjoy the best attainable state of physical and mental health.”), and the duty of the state to protect the family in Article 18(1) (“The family shall be the natural unit and basis of society. It shall be protected by the State . . . .”).

[38] Decision, supra note 2, para. 61 (citing Scott Leckie, The Right to Housing, in Economic, Social and Cultural Rights, supra note 9, at 107, 113).

[39] Id., para. 63. The Commission used the definition of forced evictions developed by the UN Committee on Economic, Social and Cultural Rights in its General Comment No. 7: The Right to Adequate Housing, UN Doc. E/C.12/1997/4 (1997) (forced evictions defined as “the permanent removal against their will of individuals, families, and/or communities from the homes which they occupy, without the provision of, and access to, appropriate forms of legal or other protection”).

[40] Decision, supra note 2, para. 62.

[41] Id., para. 63 (citing UN Committee on Economic, Social and Cultural Rights, General Comment No. 4: The Right to Adequate Housing, UN Doc. E/C.12/1991/4 (1991)).

[42] Id., para. 65.

[43] Id., para. 67.

[44] Id.

[45] Id., para. 68.

[46] On November 6, 2001, the Secretariat decided to accept and transmit to Mexico a case alleging that Mexico has denied indigenous communities of the Sierra Tarahumara access to environmental justice by failing to enforce its environmental laws regarding citizen complaints, environmental crimes and forest resources.   No other procedure exists in international environmental law to consider the impact of environmental degradation on the well-being and rights of affected persons.