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151. The Special Rapporteur underscores the need for preventive measures to
reduce the risk of disability. Non-governmental sources increasingly highlight
environmental factors as causes of disability (air and water pollution; armed
conflict, chemical weapons and vestiges of war, particularly mines; unhealthy
living conditions; inadequate standard of living; natural disasters;
technological accidents; nuclear catastrophes; dumping of toxic or hazardous
products, etc.).
152. Where natural disasters or man-made accidents are concerned, disabled
people are the first victims; they require special assistance which is not
always available. This issue deserves special attention, as do the conditions
for the reintegration of disabled people into the social, cultural, economic
and political life of their country. In this connection, the Special Rapporteur
endorses the recommendations contained in the United Nations study Human
rights and disabled persons. Study by Mr. Leandro Despouy, Special
Rapporteur of the Sub-Commission, United Nations, 1993 (United Nations
publication, Sales No. E.92.XIV).
153. As was stressed by a representative of Disabled Peoples' International:
"We can look at the effects on people with disabilities from different
points of view: (i) when environmental problems occur in the form of a
catastrophe, the first victims are disabled peoples. Other people have better
possibilities to look for shelter or space; (ii) when environmental problems
occur step by step, the first victims are disabled people because they are many
times weaker and more sensitive to pollution, for example; (iii) environmental
problems make the world less accessible and disabled people are more dependent
on others. Life is more complicated and more handicapping. Without these
problems disabled people could live more independently; (iv) the man-made
environment has been planned almost everywhere until recently without
considering disabled people as a part of the community. People make
environmental problems; (v) environmental threats are disabling and make
disabilities more serious." Extract from a speech given by the Deputy
Chairperson of Disabled Peoples' International, Mr. Kalle Konkkola, at the
Symposium on Environment and Disability, Rio de Janeiro, June 1992.
4. Environmental refugees
154. The Special Rapporteur reiterates the concern she has previously
expressed for the plight of persons displaced from their homes by adverse environmental
conditions. See E/CN.4/Sub.2/1993/7, paras. 101-106. Such persons have a wide
range of rights - whether or not they qualify as "refugees" under the
restrictive definition provided in the 1951 Convention relating to the Status
of Refugees The Convention relating to the Status of Refugees, which entered
into force on 22 April 1954, defines a refugee as one who flees his country of
origin due to a "well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or
political opinion". or its 1967 Protocol; The Protocol relating to the
Status of Refugees, which entered into force on 4 October 1967, incorporates
the Convention definition of refugee without restrictions as to date or geography.
or under the more expansive definitions in the 1969 Organization of African
Unity Convention governing the Specific Aspects of Refugee Problems in Africa
The OAU Convention governing the Specific Aspects of Refugee Problems in Africa
of 10 September 1969 states that the term "refugee" includes every
person who flees his or her country of origin "owing to external
aggression, occupation, foreign domination, or events seriously disturbing
public order". or the 1984 Cartagena Declaration on Refugees. The Cartagena
Declaration on Refugees of 22 November 1984 defines refugees as "persons
who have fled their country because their lives, safety or freedom have been
threatened by generalized violence, foreign aggression, international
conflicts, massive violations of human rights or other circumstances which have
disturbed the public order". At a minimum, such persons have the right to
life, the right to health, food and shelter, and the right not to be sent to
any location where their lives or security are endangered.
155. For the purposes of this report, the Special Rapporteur uses
"environmental refugee" to refer to anyone forced to leave his or her
normal habitat because of serious environmental disruption. This includes those
who flee their homes temporarily and those forced to flee permanently,
internally or across international borders.
156. Environmental refugee flows may arise from purely natural events, such
as earthquakes; purely human activities, such as industrial accidents; or
combinations of natural and human acts, such as excessive rainfall in a
deforested area, which gives an otherwise manageable natural event disastrous
consequences. The Special Rapporteur notes with special concern that all three
types of environmental catastrophe strike poorer, less developed areas with
significantly higher frequency than they do more affluent areas. See The
State of the World's Refugees: The Challenge of Protection, UNHCR, Penguin
Books, 1993.
157. The types of natural events that contribute to the creation of environmental
refugees include drought, famine, tropical storms and earthquakes. Human
factors that combine with natural factors to create environmental refugee flows
tend to involve matters of environmental management, including land degradation
(desertification), deforestation and depletion of the natural resource base.
Purely human-generated environmental disasters include the construction of
large dams, industrial accidents such as chemical explosions and nuclear
accidents, improper handling of hazardous wastes and, of course, armed conflict
and its consequences.
158. The Special Rapporteur is also concerned by the environmental
degradation that often results from the sudden influx of refugee populations on
already stressed lands. This degradation stems from increased demands for food,
fuel and other subsistence resources. The Special Rapporteur notes the General
Assembly's increasing attention to this set of problems. In resolutions passed
during its forty-eighth session, the General Assembly noted the environmental
pressures posed by refugees and displaced persons in Central America (res.
48/117), in Azerbaijan (res. 48/114) and in many parts of Africa (res. 48/118).
159. People who flee their homes for environment-related reasons require
humanitarian assistance simply to meet their basic survival needs. They do not
necessarily seek political asylum or require the kind of international
protection implied by the term "refugee". Many are displaced within
their own countries, yet the scope of the problem may exceed the capacity of
their Government and may therefore involve the international community. In this
regard, the Special Rapporteur has examined the reports E/CN.4/1993/35, annex
and E/CN.4/1994/44 and Add.1. of Mr. Francis Deng, the representative of the
Secretary-General on internally displaced persons to the Commission on Human
Rights. She hopes the international community will implement the concrete
suggestions made by the representative.
160. UNHCR is particularly well placed to facilitate the delivery of
essential services to displaced persons in emergency situations, on
humanitarian grounds. See Sadruddin Aga Khan, Legal Problems relating to
Refugees and Displaced Persons, 149 Recueil des Cours 287 (1976-I).
The General Assembly affirmed the need to incorporate environmental concerns
into the work of the UNHCR. UNHCR has recognized the need to improve
understanding of the relationship between migration refugee flows and
development and environmental issues. UNHCR, Note on International Protection submitted
to the Executive Committee of the High Commissioner's Programme (A/AC.96/199),
1992; see also statement by the United Nations High Commissioner for Refugees
at the United Nations Conference on Environment and Development, Rio de
Janeiro, 10 June 1992.
CHAPTER V. ANALYSIS OF THE EFFECTS OF THE ENVIRONMENT
ON THE ENJOYMENT OF FUNDAMENTAL RIGHTS
161. Recent sources observe that as from the beginning of the twenty-first
century more than half the world's population will be living in urban areas. In
2025 this figure will have reached 65 per cent, or 5 billion persons. More than
850 million people live in regions affected by desertification. The destruction
of the tropical forests is advancing at a rate of approximately one football
pitch per second. The inhabitants of the industrialized countries still consume
10 times as much commercial energy as those of the developing countries and
produce 71 per cent of the world's carbon dioxide emissions and 68 per cent of
its industrial waste. Poverty particularly affects children, 13 million of whom
die annually before their fifth birthday. Women are still barred from posts of
responsibility and hold fewer than 10 per cent of parliamentary seats
throughout the world. More than 2 million deaths and billions of cases of
disease can be attributed to pollution. Between 400 million and 700 million
people, mainly women and children from poor rural areas, are affected by the
smoke-filled atmosphere of their homes. Between 300,000 and 700,000 premature
deaths annually can be attributed to pollution in cities. The thinning of the
ozone layer may cause annually 300,000 additional cases of skin cancer
worldwide and 1.7 million cases of cataracts. See World Development Report,
World Bank, and Human Development Report 1993, UNDP, op. cit.
162. The Special Rapporteur has deliberately, without arranging them in any
order, presented observations concerning the deterioration of the environment
and figures concerning the standard of living, death rate, health,
participation, etc. in order to stress the close interaction between the
assaults made on the environment and the enjoyment of human rights, which she
has already had occasion to mention in the introduction to her earlier reports.
The analysis which follows, while endeavouring to supplement the data contained
in the earlier reports, is based on examples which, though illustrative, should
not be regarded as exhaustive.
A. Right to self-determination and permanent
sovereignty over natural resources
163. Denial of the right of peoples to self-determination and to dispose of
their natural wealth and resources has been and remains one of the deep-seated
causes of underdevelopment and of the serious damage inflicted on the
environment in formerly colonized countries and countries still under
occupation.
164. The denial of the right of peoples to self-determination and practices
in the occupied territories, characterized by massive and systematic violations
of human rights, lie at the origin of the degradation suffered by the environment
in those territories and of the damage done to the cultural heritage and living
conditions of the population, who are reduced to living in camps, precarious
housing and areas bereft of basic sanitation.
165. Population transfer, including the implantation of settlers and
settlements, directly violates the cardinal principle of the right of peoples
to self-determination and at the same time generates further violations of the
principles of international law and human rights. The implantation of settlers
and settlements, particularly in countries under foreign domination and in
occupied territories, is generally part of a deliberate policy with the aim of
changing the demographic structure and the political, cultural, religious and
other characteristics of the countries and peoples in question, with the intent
to destroy, in whole or in part, a national, ethnic, racial, religious or
linguistic group as such, to ensure the domination of one group over another,
or to distort the results of a planned self-determination referendum. In all
cases, these are illegal practices which run counter to fundamental principles
of international law. In some situations, these practices may be regarded as
amounting to genocide. See Sub-Commission resolution 1991/28 dated 29 August
1991; preliminary report by Mr. Al-Khasawneh and Mr. R. Hatano on "The
human rights dimensions of population transfer, including the implantation of
settlers" (E/CN.4/Sub.2/1993/17); working paper by Mrs. Mbonu
(E/CN.4/Sub.2/1991/47).
166. The right to development implies, as the Declaration on the Right to
Development makes clear, the full realization of the right of peoples to
self-determination and to full sovereignty over all their natural wealth and
resources. The pillage of a country's natural resources favoured by relations
of political, economic or other subjection or dependence leads to uncoordinated
and extroverted development which, besides keeping the country in a state of
chronic underdevelopment, worsens the adverse consequences which that type of
development produces on the environment (intensive exploitation of raw
materials and products that upsets the ecological balance; wastage of
non-renewable energy resources; establishment of polluting and high-risk
industries; pauperization of rural areas, etc.).
167. The United Nations General Assembly for its part has regularly
reiterated the principle set out in resolution 1803 (XVII) of 14 December 1962
whereby "The right of peoples and nations to permanent sovereignty over
their natural wealth and resources must be exercised in the interest of their
national development and of the well-being of the people of the State
concerned." General Assembly resolution 48/46 of 10 December 1993 is worth
noting here in connection with the activities of foreign economic and other
interests which impede the implementation of the Declaration on the Granting of
Independence to Colonial Countries and Peoples in Territories under colonial
domination, in which the General Assembly reaffirms "the solemn obligation
of the administering Powers under the Charter of the United Nations to promote
the political, economic, social and educational advancement of the inhabitants
of the Territories under their administration and to protect the human and
natural resources of those Territories against abuses" and emphasizes
that "the natural resources are the heritage of the indigenous populations
of the colonial and Non-Self-Governing Territories". At the same time, the
General Assembly expresses its concern about "the activities of those
foreign, economic, financial and other interests that exploit" the
resources of those Territories. In resolution 48/47 of 10 December 1993, the
General Assembly "Urges the specialized agencies and other organizations
of the United Nations system to formulate programmes that will support the
sustainable development of small island Non-Self-Governing Territories and
adopt measures that will enable those Territories to cope effectively,
creatively and sustainably with environmental changes and to mitigate impacts
and reduce the threats posed to marine and coastal resources."
168. It may also be noted that Principle 23 of the Declaration of Rio states
that "The environment and natural resources of people under oppression,
domination and occupation shall be protected."
169. On the question of the occupied Arab territories, the Commission on
Human Rights inter alia adopted resolution 1994/1 on 18 February 1994,
in which it welcomed "the positive development which originated with the International
Peace Conference on the Middle East, convened at Madrid on 30 October 1991,
including in particular the Declaration of Principles on Interim
Self-Government Arrangements signed by the Government of Israel and the
Palestine Liberation Organization on 13 September 1993, as well as all the
efforts for the creation of a peaceful and stable environment in the Middle
East", while declaring itself "Gravely concerned at the establishment
by the Israeli Government of settlers in the occupied territories, which may
change the physical character and demographic composition of the occupied
territories." The Commission took note of the information submitted by its
Special Rapporteur referring to "confiscation of land by the Israeli
authorities before and after the signing of the Declaration of Principles on 13
September 1993"; it "Urges the Government of Israel to abstain from
installing any settlers in the occupied territories."
170. The Special Rapporteur welcomes the results of the first free and
democratic elections in South Africa, which led, on 10 May 1994, to the
establishment of a united, democratic and non-racial Government. She hopes that
effective and decisive measures will be taken to eliminate the effects of the
policy of apartheid. She welcomes the fact that the new South African
Constitution contains a number of provisions concerning the fundamental rights
of the individual and stipulates, in article 29, that "every person shall
have the right to an environment which is not detrimental to his or her health
or well-being".
171. The Special Rapporteur notes with satisfaction that in President Nelson
Mandela's inaugural address to Parliament on 24 May 1994, specific mention was
made of the measures to be taken to protect the environment and ensure the
participation of society in the decision-making process. In particular,
President Mandela said:
"My Government is committed [...] to bring into the decision-making
processes organs of civil society [...] The Government will take steps to
ensure the provision of clean water on the basis of the principle of water
security for all and the introduction of proper sanitation sensitive to the
protection of the environment. We are determined to address the dire housing
shortage [...] Health also remains a fundamental block of humane society [...]
We must combat such social pathologies as widespread poverty [...] I am
especially pleased that we have a ministry dedicated to the issue of
environment. Its work must impact on many aspects of national activity and address
the question of well-being of society as a whole and the preservation of a
healthy environmental future even for generations not yet born."
B. Right to life
172. The right to life is unanimously considered to be a fundamental right
of a suprapositive character in that it is a norm erga omnes enforceable
in respect of all persons, even where there is no treaty obligation. The right
to life is included among the peremptory norms (jus cogens) from which
"no derogation is permitted". See article 52 of the Vienna Convention
on the Law of Treaties. It is therefore part of the list of the fundamental
rights of the individual from which, under the International Covenant on Civil
and Political Rights of 1966 (art. 4), the European Convention on Human Rights
of 1950 and the American Convention on Human Rights (Pact of San José of 1969),
no derogation is permitted.
173. The Human Rights Committee considered in its General Comment 6 that the
right to life is "the supreme right from which no derogation is permitted
even in time of public emergency which threatens the life of the nation ... It
is a right which should not be interpreted narrowly ... the protection of this
right requires that States adopt positive measures," such as
"measures to reduce infant mortality and to increase life expectancy ...
to eliminate malnutrition and epidemics." CCPR/C/21/Rev.1, pp. 4-5.
174. According to Professor Galicki, "The right to life is the most
important among all human rights legally guaranteed and protected by
contemporary international law. On the other hand, the right to life is the one
which is, most of all, connected to and dependent on proper protection of the
human environment. It is because this right, like no other, may be directly and
dangerously threatened by detrimental environmental measures. The right to life
and the quality of life depend directly on positive or negative environmental
conditions. Simultaneously, we cannot forget that this is an original right
from which all other human rights derive." Taken from the comments
transmitted by Mr. Galicki (Poland) to the Special Rapporteur.
175. As has been noted throughout the foregoing discussion, most assaults on
the environment lead to a deterioration in living conditions and constitute
risks for survival if not actually accompanied by deaths directly or indirectly
caused by these assaults. In the words of Mr. R.G. Ramcharan:
"Threats to the environment or serious environmental hazards may
threaten the lives of large groups of people directly; the connection between
the right to life and the environment is an obvious one ... . A discussion of
the interrelationship between the two rights should, however, go beyond this
... [and] may be summarized in the following proposition: 1. There is a strict duty
upon States, as well as upon the international community as a whole, to take
effective measures to prevent and safeguard against the occurrence of
environmental hazards which threaten the lives of human beings. 2. Every State,
as well as the United Nations (UNEP), should establish and operate adequate
monitoring and early-warning systems to detect hazards or threats before they
actually occur. 3. States which obtain information about the possible emergence
of an environmental hazard to life in another State should inform the State at
risk or at least alert UNEP on an urgent basis. 4. The right to life, as an
imperative norm, takes priority above economic considerations and should, in
all circumstances, be accorded priority. 5. States and other responsible
entities (corporations or individuals) may be criminally or civilly responsible
under international law for causing serious environmental hazards posing grave
risks to life. This responsibility is a strict one, and should arise
irrespective of whether the act or omission in question is deliberate, reckless
or negligent. 6. Adequate avenues of recourse should be provided to individuals
and groups at national, regional or international levels, to seek protection
against serious environmental hazards to life. The establishment of such
avenues of recourse is essential for dealing with such risks before they
actually materialize." R.G. Ramcharan, The Right to Life, The
Hague, 1983, pp. 310-311. As emphasized by A.A. Cançado Trindade, the rights to
life and health are "at the basis of the ratio legis of
international human rights law and environment law". In "The parallel
evolutions of international human rights protection and of environmental
protection and the absence of restrictions upon the exercise of recognized
human rights", Revista del Instituto Interamericano de Derechos Humanos
vol.13, 1991, p.50.
C. Right to health
176. As recognized in the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, other human
rights instruments and most national constitutions, everyone has a right to the
highest attainable standard of health. In the environmental context, the right
to health essentially implies feasible protection from natural hazards and
freedom from pollution, including the right to adequate sanitation. This right
is directly linked to the right to water and food, to safe and healthy working
conditions, and to housing.
177. Numerous communications were received pointing to the direct link
between adverse environmental conditions and violations of the right to health,
and exemplifying the irreversible impacts on health of large-scale industrial
accidents as well as the deleterious effects of other less spectacular sources
of pollution, such as the continuous discharge of toxic and hazardous
substances into air, soil and water. Contaminating substances frequently enter
the food chain and lead to respiratory and skin diseases, among others.
178. Natural disasters and climate change conditions are also an increasing
reason for widespread health concerns, particularly as a result of massive
floods, which, linked to major sanitation problems and unsafe water, result in
the rapid spread of contagious diseases. Also to be noted are the catastrophic
effects of desertification and drought, particularly in Africa, as they result
directly in lack of food and water. Drought and desertification cause massive
displacement of peoples, social insecurity and widespread living conditions at
a level not commensurate with human dignity. The Special Rapporteur wishes to
emphasize the importance of ensuring the availability of safe water in
quantities adequate to maintain or improve human health and life.
179. Environmental problems negatively affect human health in both the industrialized
and the developing world, but those relatively poorer and disadvantaged
minorities are most greatly harmed by adverse environmental conditions. This
situation is particularly exacerbated by lack of information about the
environment of local populations, insufficient infrastructure, inadequate
social security systems or inadequate access to such services.
180. The link between the environment and human health has repeatedly found
reflection in the international and domestic instruments, either explicitly or
under a more general expression of a right to adequate conditions of life.
Declaration of the United Nations Conference on the Human Environment
(Stockholm, 1972), Principle 1. When asserting the right to the environment,
current provisions express it in terms of the right to a healthy environment.
This qualification of the environment has been generally interpreted to mean
that the environment must be healthy in itself - free from "diseases"
that hinder its ecological balance and sustainability - and that it must be
healthful, that is conducive to healthy living.
181. The International Covenant on Economic, Social and Cultural Rights
recognizes that to achieve the full realization of the right to health it is
necessary to ensure the improvement of all aspects of environmental and
industrial hygiene. As noted by the Special Rapporteur in her 1992 progress
report, the implementation of the right to health contained in the 1961
European Social Charter has led the Committee of Independent Experts to take
into account measures to prevent, limit or control pollution. See
E/CN.4/Sub.2/1992/7, paras. 73-74.
182. Indigenous peoples have alleged in international forums violations of
their right to health as a result of environmental destruction. See E/CN.4/Sub.2/1992/7,
paras. 94-95. In one key case, the Inter-American Commission on Human Rights
found that the right to health and well-being of indigenous peoples had been
violated as a result of the negative environmental effects and dissemination of
disease that followed from road construction in the rainforest. Case No. 7615
of 5 March 1985, in the annual report of the Inter-American Commission on Human
Rights, 1984-1985 (OEA/Ser.L.V/II/66).
183. International environmental law instruments have frequently referred to
the negative effects on health of environmental pollution. Many of these
instruments define pollution as the introduction by man of substances or energy
into the environment resulting in such deleterious effects as hazards to human
health or which harm/endanger human health. See Joint IMO/FAO/UNESCO/WMO Group
of Experts on the Scientific Aspects of Marine Pollution, GESAMP (A/7750)
(1969); Convention for the Prevention of Marine Pollution from Land-based
Sources (Paris, 1974); Convention for the Protection of the Mediterranean Sea
against Pollution, art. 2 (Barcelona 1976); Recommendation on Equal Right of
Access and Non-Discrimination in Relation to Transfrontier Pollution (OECD,
1977); Convention for Cooperation in the Protection and Development of the
Marine and Coastal Environment of the West and Central African Region, art. 2
(Abidjan, 1981); United Nations Convention on the Law of the Sea, art. 1 (4)
(1982).
184. The right to health can be constructively viewed from an environmental
perspective in the light of the principles of sustainable development. Under
these principles, another facet of the right to health reaches full meaning: as
stated by the World Health Organization (WHO), "human health is essential
for sustainable development since without health, human beings would not be
able to engage in development, combat poverty and care for their
environment". Thus, there is clear interdependence between health and
environmental protection. As WHO points out, "... health status is nearly
always the best as well as first indicator of environmental degradation".
See background paper on "Health, the Environment and Sustainable
Development", prepared for the Commission on Sustainable Development by
the World Health Organization, Task Manager on Health, March 1994, p. 1.
185. Although it was already present in the Stockholm Declaration - and
particularly well addressed as a sustainable development issue in the report of
the United Nations Conference on Environment and Development - it is important
to note the significance of health being part of the first principle of the
1992 Rio Declaration and the multiple references to the protection and
promotion of health in Agenda 21, particularly in chapter 6, which deals
exclusively with human health.
186. The Special Rapporteur welcomes the increased action taken by
Governments and United Nations agencies such as FAO, UNEP and WHO, in
preparation for and as a result of UNCED, to address environmental problems and
their impact on human health. In particular, she notes the significant amount
of documentation provided by WHO and appreciates representatives from this
organization meeting with her in a special session to discuss a wide variety of
matters regarding the relationship between environmental issues and the right
to health. The Special Rapporteur would like to acknowledge some recent
initiatives of WHO, such as the report of its Commission on Health and the
Environment, Our Planet, Our Health, See E/CN.4/Sub.2/1993/7, para. 98.
the comprehensive background paper for the Commission on Sustainable
Development (CSD) by the Task Manager on Health, the development of programmes
on cities and the environment and on health support systems, and the
"Global Strategy for Health and the Environment". She also commends
the Political Statement and Action Programme of the March 1994 Ministerial
Conference on Drinking Water and Environmental Sanitation, particularly part 2
on "Water, Health and the Environment". Conference held in Noordwijk,
The Netherlands, 22-23 March 1994. See E/CN.17/1994/12.
187. As emphasized at this Conference and by CSD and WHO, significant
financial resources need to be allocated to ensure adequate protection of
health from negative environmental conditions. Indeed, funding of health
protection and promotion must be applied in a framework of international and
national equity and solidarity, taking into consideration at all times the fact
that the right to health echoes fundamental human needs. See WHO background
paper cited at note 95 supra. Obviously, there is also a need to ensure
that structural adjustment programmes do not cut allocations for health care,
education and environmental protection.
D. Right to food
188. International articulations of the right to an adequate standard of living
- including those set forth in the Universal Declaration of Human Rights and
the International Covenant on Economic, Social and Cultural Rights - recognize
the right to food as an essential component of the right to health. Food
security is inextricably linked to an environment free from degradation and it
depends on environmentally sound and socially sustainable development. See
Asbjørn Eide, Right to Adequate Food as a Human Right, Study Series No.
1, United Nations publication, Sales No. E.89.XIV.2, 1989.
189. The Special Rapporteur notes with concern the point raised at UNCED and
generally recognized that massive numbers of people suffer from lack of food
while the world as a whole produces sufficient food to feed everyone. Principle
31 of the Vienna Declaration and Programme of Action of the World Conference on
Human Rights also proclaims that food shall not be used as a tool for political
pressure.
190. Special attention should be devoted to eliminating the use of food as a
weapon, whether in times of armed conflict or as a more general tool of
oppression. In either case, interference with access to, production of and
distribution of food often leads to severe environmental stresses and forces
people to sacrifice long-term environmental sustainability in order to meet
short-term subsistence needs.
191. The right to food is evidently linked to the issues of extreme poverty
and underdevelopment (see chap. 2).
E. Right to safe and healthy working conditions
192. The environmental dimension of the right to work needs to be understood
in the light of the right to health and in the general context of the right to
an adequate standard of living with due regard to the right to safe and healthy
working conditions.
193. Realization of this right requires a working environment free from
pollution and other hazards, where workers' health is not threatened by
circumstances such as exposure to asbestos, contact with pesticides and
fungicides, or inhalation of toxic substances. Fulfilment of this right in turn
requires the right to know and to have access to relevant information on
environmental and health risks, the right of expression and association to
facilitate collective action, and the recognition of the workers' right to refuse
to pollute at the workplace.
194. Numerous conventions concluded under the auspices of the International
Labour Organisation (ILO) address many different environmental aspects of
occupational health and safety. Some of the most significant ones are the
Chemicals Convention (No. 170, 1990); the Safety and Health in Construction
Convention (No. 167, 1988); the Asbestos Convention (No. 162, 1986);
Occupational Safety and Health Convention (No. 155, 1981) the Working
Environment (Air Pollution, Noise and Vibration) Convention (No. 148, 1977);
the Occupational Cancer Convention (No. 139, 1974); and the Benzene Convention
(No. 136, 1971). Vulnerable groups such as children, indigenous peoples,
migrant workers and women suffer disproportionately from violations of the
right to safe and healthy working conditions. This underlines the necessity of
ratifying the international instruments and improving ways and means by which
provisions of these instruments can be fully implemented.
F. Right to housing
195. The fundamental right to adequate housing has both a firm basis in
international human rights law and a significant environmental dimension. As
noted by Mr. Rajindar Sachar, Special Rapporteur on the right to adequate
housing, housing rights involve survival, health and environmental conditions
in a holistic and interdependent framework and one which transcends the
outdated "four walls and a roof" view of housing. See
E/CN.4/Sub.2/1993/15, section II.
196. Agenda 21 parallels Mr. Sachar's holistic view of housing rights and
sets an objective of achieving adequate shelter, especially for the poor,
through an enabling approach to shelter development and improvement that is
environmentally sound.
197. The right to adequate housing is enshrined as a basic human right in
article 25 (1) of the Universal Declaration of Human Rights, and article 11 (1)
of the International Covenant on Economic, Social and Cultural Rights. Both
instruments describe the right to housing as an essential component of the
right to an adequate standard of living. The right to housing also appears in
many other international, regional and national legal instruments. See
E/CN.4/Sub.2/1992/15, paras. 62-65.
198. The Committee on Economic, Social and Cultural Rights, in its General
Comment No. 4 (1991) on the right to housing, explains that the right to
housing means, among other things, housing not built on polluted sites or in
close proximity to pollution sources that threaten the right to health of
inhabitants. E/1992/23-E/C.12/1991/4, annex III. The Special Rapporteur on the
right to adequate housing shares the Committee's views in this regard. See
E/CN.4/Sub.2/1993/15, para. 90. The Committee requires that States parties to
the International Convention on Economic, Social and Cultural Rights include in
their reports to the Committee information on measures concerning environmental
planning and health in housing and human settlements. Revised guidelines
regarding the form and contents of reports to be submitted by States parties
under arts. 16 and 17 of the International Covenant on Economic, Social and
Cultural Rights (E/1991/23-E/C.12/1990/8, annex IV). The Committee's Guidelines
on State reporting and its General Comment No. 4 stand as useful examples of
how the United Nations and the international community as a whole might
explicate the meaning of other human rights and enhance compliance with those
rights.
199. The right to adequate housing also includes the obligation to avoid
forced evictions, a practice that constitutes a gross violation of human
rights. See E/CN.4/Sub.2/1992/15, para. 41; Commission on Human Rights
resolution 1993/77 of 10 March 1993; analytical report of the Secretary-General
on the practice of forced evictions (E/CN.4/1994/20). Of particular concern is
the fact that States often fail to comply with their obligation not to carry
out or advocate forced or arbitrary evictions of persons or groups. Forced
evictions should take place only when conservation and rehabilitation are not
feasible and suitable relocation measures are undertaken. Where forced
evictions cannot be avoided, the affected persons have a right to just
compensation.
200. In addressing forced evictions, we should not forget the importance of
the right to property which includes the right not to be deprived of land,
water resources and other aspects of one's habitat, and it thus precludes
deforestation and other environmentally destructive acts. See the reports of
the independent expert of the Commission on the right of everyone to own
property, Mr. Luis Valencia Rodríguez (E/CN.4/1994/19 and Add.1 and
E/CN.4/1993/15).
201. In carrying out structural adjustment programmes and other activities,
the international financial institutions, development agencies and Governments
should pay particular attention to the possible adverse effects of those
programmes and specifically to the issue of displacing people from their homes.
The pressure on financially strapped Governments to divert their limited
financial resources from dealing with housing, environmental and other problems
to making their payments to funding agencies only exacerbates the problem. The
institutions concerned must take into account the environmental and housing
rights consequences of their activities throughout the project process, from
planning to implementation and monitoring. The Committee on Economic, Social
and Cultural Rights has addressed this concern in its General Comment No. 2
(1990). E/1990/23-E/C.12/1990/1, annex III.
202. The realization of the environmental dimension of the right to adequate
housing requires concurrent attention to the rights to health and food, and to
the eradication of poverty.
G. Right to information
203. The Special Rapporteur considers the right to information highly
relevant to human rights and the environment. Public access to information on
request and the obligation of public authorities to disclose it irrespective of
requests are essential for the protection of the environment and the prevention
of environmental human rights problems.
204. In the Special Rapporteur's view, the right to information relating to
the environment requires that information be relevant and comprehensible; that
it be provided in a timely manner; that the procedures to obtain information,
if established, be simple and brief; that the cost to individuals and groups be
reasonable; and that it be available across State boundaries. The Special
Rapporteur also considers that the right to information includes the right to
be informed, even without a specific request, of any matter having a negative
or potentially negative impact on the environment. It is clear to the Special
Rapporteur that the right to information imposes a duty on Governments. It is
also clear to the Special Rapporteur that the right to information imposes a
duty on Governments to collect and disseminate information and to provide due
notice of significant environmental hazards.
205. The main human rights instruments prominently feature the right to
information. This right appears in article 19 of the Universal Declaration of
Human Rights and article 19 of the International Covenant on Civil and
Political Rights. Both these texts protect the rights to freedom of opinion and
expression, and to seek, receive and impart information through any media,
regardless of national boundaries. Article 1 of the draft Declaration on
Freedom of Information Economic and Social Council resolution 756 (XXIX) of 21
April 1960. provides that "the right to know and the right freely to seek
the truth are inalienable and fundamental rights of man". Article 2 of the
Declaration sets out governmental duties relating to the free flow of
information. Article 4 provides that those who disseminate information have a
duty of good faith to report accurately on the facts. Other provisions of international
instruments stress that information must be accurate and relevant. For example,
in the Convention on the International Right of Correction (General Assembly
resolution 630 (VII) OF 16 December 1952, annex), Governments in countries
where incorrect, distorted or damaging information about other Governments has
been disseminated are required to release a correcting statement (called a
"communiqué") provided by the injured Government.
206. United Nations bodies and specialized agencies frequently have emphasized
the importance of information in the area of environment. The Declaration of
the United Nations Conference on the Human Environment contains reference to
the right to information in Principle 19. The 1972 United Nations Educational,
Scientific and Cultural Organization Convention for the Protection of the World
Cultural and Natural Heritage UNESCO Convention of 16 November 1972. requires
States to provide the public with information on dangers to the environment.
The World Charter for Nature General Assembly resolution 37/7 of 28 October
1982. also contains provisions relating to information, including paragraph 21
(a). Principle 10 of the 1992 Rio Declaration on Environment and Development
indicates the duty of States to make information "widely available".
207. Several regional organizations have also emphasized the need for
information regarding the environment. The League of Arab States proclaimed the
Arab Declaration on Environment and Development and Future Perspectives United
Nations document A/46/632, 1991. in which the League stresses the right of
persons and groups to relevant information, including technical data. In the
European Union several directives and recommendations stress the right to
information. The EC Directive on Freedom of Access to Information on the
Environment Council Directive 90/313/EEC of 7 June 1990. covers the issue most
comprehensively. For analysis of environmental information regarding the
European system of human rights, see Stefan Weber, "Environmental Information
and the European Convention on Human Rights", 12 Human Rights Law
Journal 177 (1991). Regional environmental treaties also emphasize the
right to information, including the affirmative duty to disclose or provide
information. For example, the Nordic Convention on the Protection of the
Environment The Nordic Convention on the Protection of the Environment of 19
February 1979. requires the States parties to publish relevant information in
the newspapers or other forms of public media; the ASEAN Agreement on the
Conservation of Nature and Natural Resources Association of South-East Asian
Nations Agreement on the Conservation of Nature and Natural Resources of 9 July
1985. requires the States parties to disclose and disseminate relevant
information. Certain international treaties, such as the Antarctic Protocol on
Environmental Protection, Antarctic Protocol on Environmental Protection
[signed?] 4 October 1991, [int'l cite]. require States to provide environmental
information upon request. Other international treaties impose a duty to warn
other States of environmental dangers. See, for example, article 198 of the
United Nations Convention on the Law of the Sea of 10 December 1982 and art. 2
(a) of the Convention on Early Notification of a Nuclear Accident, Vienna, 26
September 1986.
208. Within the United Nations system, reporting requirements and increased
dissemination of environmental issues can enhance the right to information.
Within the United Nations Environment Programme, for instance, performance
reports are requested of Governments and organizations. These reports are
available to the public. Other branches of the United Nations system are
carrying out initiatives to provide relevant and timely information and
education regarding the environment. For example, the Department of Public
Information has released Status of World Environment in Mexico, Italy
and Japan in the local languages, thereby greatly enhancing international
dissemination of this important work. Report of the Committee on Information, Official
Records of the General Assembly, Supplement No. 21 (A/45/21) p. 35. The
General Assembly, in its 11 December 1990 resolution 45/76 entitled
"Questions relating to information", directed the Department of
Public Information to pay particular attention to both human rights and the
environment in its information activities.
209. The right to information is frequently presented as an individual and
group right which constitutes an essential attribute of the democratic
processes and the principle of popular participation. Indeed, the concept of
democratic government as stated in article 21 of the Universal Declaration of
Human Rights becomes meaningless unless individuals and groups have access to
relevant information on which to base the exercise of the vote or otherwise
express the will of the people.
210. Violations of the right to information in the environmental context
arise in various ways. The Special Rapporteur cannot discuss all the situations
brought to her attention, but wishes to present a few examples by way of
illustration. First, violations occur when development projects or other
activities with great potential impact on the environment and people's rights
involve a Government, government contractors, and perhaps international funding
sources. Relevant information may be in many locations and with many entities,
making access by the public difficult. International funding sources or
transnational corporations may not allow private access to information under
their control.
211. Violations can also occur when Governments invoke national security or
other reasons as justification for withholding of information from the public.
Violations may be compounded where it is not possible to obtain judicial review
of the Government's non-disclosure. The Special Rapporteur has received reports
of serious human rights violations suffered by people as a result of efforts to
obtain information about environmental situations. Problems affecting the
realization of the right to information can also arise when Governments appear
to cooperate but instead provide limited information, or provide it either
piece by piece or in vast, unmanageable quantities with no apparent order or
relevancy. Individuals or groups seeking to monitor activities having an impact
on the environment or to assess environmental harm already done may not be able
to use the information in a timely, effective manner.
212. Problems also occur when people or groups are prevented from
disseminating information regarding ecological problems by a court. For
example, the use of the sub judice rule has been effective in many areas
in suppressing vital environmental information. Under the sub judice
rule once a legal action has been filed, it may not be commented on or reported
on in the public media at the risk of being cited for contempt of court.
213. The Special Rapporteur is aware that national security, "trade
secrets", sub judice or other defences against reasonable requests
for information will surely continue to arise. However, the Special Rapporteur
must stress that Governments may only use national security defences in
conformity with the relevant derogation or limitation clauses of international
human rights instruments. "Trade secrets", sub judice and
other defences must be reviewable to ensure that the public's right to
information is not unduly restricted.
214. Even if a plausible national security defence could be presented, the
Special Rapporteur considers that there are circumstances where it is not
acceptable. For example, individuals, communities and neighbouring countries
must have information regarding specific hazardous materials and conditions at
industrial facilities located in their vicinity in order to undertake disaster
planning and response wherever there is a danger of large-scale industrial
accidents like Chernobyl and Bhopal. Individuals, communities and neighbouring
countries must have information regarding the full range of environmental
consequences of proposed development projects in their regions in order to participate
meaningfully in decisions that could adversely affect them due to increased
pollution, loss of land base, dislocation and other impacts. Individuals,
communities and neighbouring countries must have information regarding
pollutants and wastes associated with industrial and agricultural processes. In
these circumstances there is a clear duty to disclose.
215. The right to information not only protects individuals and groups, but
also Governments themselves. In this light, the Special Rapporteur is aware
that in the context of human rights and the environment, the right to
information may also be considered a right of States vis-à-vis other
States or of States vis-à-vis transnational corporations. In this
context a State's access to information would enable it to transmit the
information to its residents and to otherwise protect the human rights of those
residents. The Special Rapporteur stresses that the right of States aspect of
the right to information is particularly important regarding the issue of toxic
waste disposal, the use of nuclear power and disposal of nuclear wastes, and
the production or use of toxics because of the human hazards these matters
pose.
216. The Special Rapporteur has reviewed information showing that many
conflicts have arisen between Governments because Governments of developed
countries, transnational enterprises operating from the developed countries or
international development banks do not provide full disclosure of potential
dangers to human beings or to the environment for contemplated activities.
Under these circumstances, individuals and groups have limited recourses
because their own Governments may not have the relevant information.
H. Popular participation
217. The right of popular participation in its various forms ranks high in
importance for promoting and protecting human rights and the environment. The
basic right to popular participation is provided for in article 21 of the
Universal Declaration of Human Rights and a number of international
instruments. The United Nations system has long recognized the importance of
popular participation in the protection of the environment, especially evident
in the 1972 Stockholm Declaration, the 1975 United Nations work on popular
participation in development See Popular Participation in Decision Making
for Development, United Nations publication, Sales No. E.75.IV.10 (1975).,
the 1992 Rio Declaration and Agenda 21, and 1993 Vienna Declaration and
Programme of Action.
218. The Special Rapporteur stresses that popular participation is closely
related to the rights to education and information: without education about the
environment and without access to relevant information on issues of concern,
popular participation is meaningless.
219. in the United Nations the issue of popular participation became
prominent in the context of the right to development See, in particular, the
United Nations Declaration on Social Progress and Development, General Assembly
resolution 2542 (XXIV) of 11 December 1969, calling for Governments to adopt
measures for participation of all elements of society in social and economic
development schemes.. After the International Seminar on Popular Participation
(Ljubljana, 1982), the issue of popular participation has become an essential
feature of a wide range of human rights concerns. The General Assembly asked
the Commission on Human Rights to address popular participation in a broader
context General Assembly resolution 37/55 of 3 December 1982., reflected in the
Commission's work. See, for example, E/CN.4/1985/10 and Add.1 and 2;
E/CN.4/1991/11. Popular participation is a prominent feature of the World
Charter for Nature and the Rio Declaration on Environment and Development (see supra,
chap. II, sect. C).
220. It is important that participation in the environmental context be
meaningful - a question of quality of the participation and whether it is
timely. Environmental destruction is not easily undone. People must be able to
prevent environmental harm. As a minimum, people have the right to receive
notice of and to participate in any significant decision-making regarding the
environment, especially during the process of environmental impact assessments
and before potential damage is done. Participation must include the right to
oral and written commentary. People must also be able to participate in
follow-up projects and in ongoing monitoring of environmental situations. To
prevent damage or to provide relief if damage has already been done, people
must also have the right to seek effective remedy in courts, tribunals or other
forums for violations, including violations arising from a failure to allow
effective participation.
221. Although many people are prevented from participating in decisions,
there is a growing national and international trend, including at the
international funding institutions, to allow the participation of individuals
and groups in all stages of activities involving the environment. The
environmental impact assessment process has been effective in providing for
meaningful public participation. The United Nations Environment Programme has
prepared a set of goals and principles on environmental impact assessment with
a heavy emphasis on public participation. UNEP/Z/Ser.A/9 (1989).
222. The Special Rapporteur has been presented with a variety of means by
which participation in environmental decision-making is unduly restricted. A
denial of standing in the process of environmental impact assessments and in
judicial action has been a particularly effective means to prevent meaningful
public participation in environmental concerns, first, because it denies the
ability to prevent harm and second because it denies the possibility of
reparations, compensation or other remedies. Groups or individuals may be
denied standing because they are not considered to be sufficiently affected or
injured by actual or proposed activities. Persons and groups from one country
may not have standing in another country where the environmental problem arises
that affects them. International forums have interpreted standing broadly. For
example, in cases with environmental concerns, the Inter-American Commission on
Human Rights has allowed "interest group" or "interested
citizen" actions; the Council of Europe has required actual victims or
relatives of actual victims, although the victim may be a group or
non-governmental organization. The United Nations Human Rights Committee allows
collective communications but has implied that each of the individuals of the
group must be able to allege essentially the same injury. The Special
Rapporteur has analysed many cases brought before national courts, European
human rights bodies, the Inter-American Commission on Human Rights and United
Nations human rights bodies. See E/CN.4/Sub.2/1992/7 and E/CN.4/Sub.2/1993/7.
In the view of the Special Rapporteur, standing must always be broadly granted
to foster public participation and to better protect all human rights in an
environmental context.
223. The question of popular participation and the environment has special
relevance in conditions of extreme poverty. The extremely poor suffer most from
environmental hazard, yet they are rarely included in decision-making
processes, monitoring or follow-up. They usually have no means to carry out
judicial actions. States and the international community should ensure that all
affected persons, regardless of their economic status, are included in
decision-making and related activities and that they have the means to take
legal recourses.
I. Freedom of association
224. The right to freedom of association forms a crucial element of
effective popular participation in matters that relate to the environment and
in general. Article 20 of the Universal Declaration of Human Rights and article
21 of the International Covenant on Civil and Political Rights establish
freedom of association and assembly as fundamental human rights. In the
environmental context these rights encompass the freedom to associate freely
and peacefully with others to protect the environment, to protect the rights of
others affected by environmental harm, and to take collective action in support
of environmental causes.
225. As noted in chapter 29 of Agenda 21, freedom of association has
particular relevance in the case of workers. The right to organize plays a
critical role in workers' ability to protect and enforce their right to
environmental health and safety on the job. Outside of the trade union context,
the right to association, in conjunction with the right to freedom of
expression, is possible for groups of individuals, such as non-governmental
organizations, to mobilize the human and financial resources necessary to
effectively address environmental problems (see chap. 27 of Agenda 21).
J. Cultural rights
226. The relationship between the deterioration of the environment and the
enjoyment of cultural rights has several dimensions, indissolubly linked to the
fundamental rights to education, information, freedom of expression, assembly
and association, and the right to take part in public life and in
decision-making. Cultural rights may equally well be considered from the
standpoint of the right to leisure, provided for in a number of international
human rights instruments, which leads to the right to the conservation of
unique sites constituting the universal heritage.
227. Nearly 20 years ago, the Director-General of UNESCO made the
following reflection on the relationship between culture and man's
environment: Report of the Secretary-General: "The balance which should be
established between scientific and technological progress and the intellectual,
spiritual, cultural and moral advancement of humanity" (E/CN.4/1199),
thirty-second session of the Commission on Human Rights, 1976, p. 37.
"... The deterioration of the natural environment and, even more, the
alienation from this environment of an increasingly large number of people in
the industrialized countries are direct and potentially very serious blows to
culture itself. What idea can man form of purity unless he initially receives a
spontaneous impression of purity from the air he breathes, the river where he
bathes, the sky on which he gazes or from all that goes to make up his life at
its most instinctive? What secrets can he hear murmured within him if silence
without is denied to him? How can he meditate amid tumult? How can he find
himself in a continual flux of movement without pattern? And to what
discoveries can he direct his steps outside himself, what marvels can he look
for in a world where so many animal species are vanishing, where plant life is
retreating further and further from our dwellings, and where man is
increasingly confronted with the products and the signs of his oppressive
presence?"
228. The importance of protecting cultural property and the specific role of
UNESCO in this sphere may be recalled at this point. The Constitution of UNESCO
states that "since wars begin in the minds of men, it is in the minds of
men that the defences of peace must be constructed" and that peace must be
founded upon the intellectual and moral solidarity of mankind.
229. On 14 November 1970, the General Conference of UNESCO at its sixteenth
session adopted the "Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property." According to this Convention, the term "cultural
property" means "property, which on religious or secular grounds, is
specifically designated by each State as being of importance for archaeology,
prehistory, history, literature, art or science". Article 1 of this
instrument lists the categories of cultural property protected.
230. On 16 November 1972, another convention saw the light of day under the
auspices of UNESCO; it relates to the "protection of the world cultural
and natural heritage". It came into force on 17 December 1975; it codifies
UNESCO's practice in this area and describes methods of cooperation for
safeguarding the natural heritage which is increasingly threatened by
the deterioration of the environment.
231. The Convention covers the cultural and natural heritage
of outstanding universal value from the point of view of history, art, science
or aesthetics. It establishes two fundamental principles: each State party
undertakes to ensure the conservation of the world heritage situated on
its territory; and States parties recognize that the international community
must cooperate to protect and conserve this heritage. For this purpose, each
State party is required to draw up an inventory of property forming part of the
cultural and natural heritage situated on its territory and suitable for
protection. A World Heritage Committee, set up under the Convention, is
responsible for designating the property which is part of the world heritage
and disseminating, when circumstances demand, a "List of World Heritage in
Danger", so as to protect that property against disappearance,
deterioration, destruction, abandonment, natural catastrophes or the outbreak
or threat of an armed conflict (art. 11).
232. According to the Convention, "deterioration or disappearance of
any item of the cultural or natural heritage constitutes a harmful
impoverishment of the heritage of all the nations of the world". The
States parties, out of respect for the sovereignty of the States in whose
territory the cultural and natural heritage is situated, recognize that it
constitutes a universal heritage, and undertake to protect, conserve and
preserve it and not to take any deliberate measures which might damage this
heritage directly or indirectly (see art. 6).
233. The right to culture and the other related rights recognized in a
number of international instruments entail the right of everyone "freely
to participate in the cultural life of the community, to enjoy the arts and to
share in scientific advancement and benefits" (Universal Declaration of
Human Rights, art. 27), and "the right and the duty" of every people
"to develop its culture," since each culture has "a dignity and
value which must be respected and preserved" (Declaration of the
Principles of International Cultural Cooperation, art. 1). Proclaimed by the
General Conference of UNESCO at its fortieth session, on 4 November 1966. See
"A Compilation of International Instruments", United Nations, Sales
No. E.93.XIV.1, pp. 591-594.
234. In this context, development models which are extroverted or
exclusively growth-oriented, carry the risk of acculturation, or even
endangering cultures closely linked to a form of existence of national, ethnic,
religious or linguistic minorities or of indigenous peoples. While the Special
Rapporteur is aware of the fact that traditional practices which run counter to
progress and affect human rights should be eradicated, she also considers that
sustainable development only has a real sense in so far as it takes account of
the aspirations of the individuals, groups and peoples concerned, and preserves
their cultural identity and their means of existence.
CHAPTER VI. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
235. The problems of the environment are no longer being viewed exclusively
from the angle of the pollution affecting the industrialized countries but seen
rather as a worldwide hazard threatening the planet and the whole of mankind,
as well as future generations. There is now a universal awareness of the
widespread, serious and complex character of environmental problems, which call
for adequate action at the national, regional and international levels.
236. The realization of the global character of environmental problems is
attested to by the progress made in understanding the phenomena that create
hazards for the planet, threaten the living conditions of human beings and
impair their fundamental rights. These phenomena concern not only the natural
environment (the pollution of water, air and atmosphere, seas, oceans and
rivers; depletion of the ozone layer; climatic changes) and natural resources
(desertification, deforestation, soil erosion, disappearance of certain animal
species; deterioration of flora and fauna; exhaustion of non-renewable
resources, etc.) but also populations and human settlements (housing, town
planning, demography, etc.) and the rights of human beings (the human
environment, living, working and health conditions; conditions for the exercise
and enjoyment of fundamental rights).
237. By means of a global approach to these phenomena that takes in their
multidimensional aspects, including their human aspects, it has become possible
to move from environmental law to environmental rights, proclaimed by the 1972
Stockholm Declaration which states in its Principle 1 that "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, and he
bears a solemn responsibility to protect and improve the environment for
present and future generations".
238. Since then, a large number of national, regional and international
instruments have been drawn up which have strengthened the legal bases of environmental
rights and stressed the intrinsic link that exists between the preservation of
the environment, development and the promotion of human rights.
239. The Special Rapporteur has endeavoured, within the limits of the means
at her disposal, to collect the basic legal instruments underpinning
environmental rights and to clarify the relationship existing between the
preservation of the environment and human rights. She has received from
governments, the United Nations bodies concerned, specialized agencies and
intergovernmental and non-governmental organizations, studies, communications,
information and comments that have proved very useful for her report.
240. This research has revealed universal acceptance of the environmental
rights recognized at the national, regional and international levels.
241. At the national level, over 60 constitutions brought to the attention
of the Special Rapporteur contain specific provisions relating to the
protection of the environment; some of them recognize explicitly the right to a
satisfactory environment, entailing corresponding duties towards the State and
its institutions and rights and/or obligations for individuals and organs of
society. An increasing number of national legislations have developed the
framework of laws and regulations needed to ensure the right to a satisfactory
environment and have spelt out the substantive content of that right and the
ways and means whereby it may be exercised, including remedies to safeguard its
effective enjoyment and afford guarantees for its implementation. A few
constitutions provide, in the section dealing with human rights and fundamental
freedoms, for the right to a healthy environment and the guarantees attaching
thereto, including in some cases the right of recourse and petition. Some
countries have provided for the punishment of offences against the environment
and have introduced into national legislation the principle of compensation for
the victims as well as reparation of the damage. There is moreover a trend towards
developing and strengthening the means of preventing damage to the environment.
242. At the regional and universal level, recognition of the right to a
satisfactory environment as a human right is reflected both in the related
normative developments and in the "environmental" concern that
informs the activities of human rights bodies. Although only a few instruments
of a binding legal character have established a direct link between the
environment and human rights, the regional and international human rights
bodies are developing a practice whereby the procedural bases for enforcing the
right to a satisfactory environment are becoming more firmly established and
the validity of complaints of human rights violations based on ecological
considerations is being recognized. These bodies do not dismiss out of hand the
idea that ecological factors may hinder the enjoyment of the human rights
enshrined in the instruments in their care. On the other hand, those same
bodies and more particularly the European Court of Human Rights have, in
certain cases, legitimated restrictions on the use of private property in the
public interest based on concern for the need to preserve the environment.
243. This review of the activities of human rights bodies and other fields
relevant for the study has made it possible to outline the scope of
environmental rights. Many human rights are suited to being applied from an
ecological perspective, whether those rights are political, civil, social,
economic or cultural, and whether they are exercised individually or
collectively. The Special Rapporteur has drawn up a list of those rights,
albeit a non-exhaustive one and has attempted to assess the effects of the
environment or enjoyment of those rights.
244. Her analysis of the ways in which the right to a satisfactory
environment relates to other human rights gave the Special Rapporteur occasion
to stress the close link existing between that right and the right to
development. The fact is that the affirmation of "ecological rights"
attaching to recognition of the right to a satisfactory environment cannot be
understood if we disregard the problems bound up with development both
nationally and internationally. It also rests on the indivisibility and
interdependence of all human rights.
245. In this context, it is important to bear in mind the consensual aspects
which form the basis of the world partnership for sustainable development and
serve to reaffirm the principle of the right of peoples to self-determination,
the duty to protect the environment and natural resources of peoples suffering
oppression, domination and occupation, and the sovereign right of States to
exploit their own resources in accordance with their environmental policy,
while ensuring that the activities conducted by them or under their supervision
do not damage the environment.
246. The world partnership establishes a responsibility which, while shared
is differentiated on the basis of the "polluter pays" principle, the
special responsibility of industrialized countries, and the problems and needs
of developing countries. It also calls for the channelling of new and
additional resources to the developing countries and the equitable settlement
of those countries' foreign debt. The United Nations General Assembly has called
for innovative measures in this respect, such as the conversion of debt into
shareholdings and into ecological investment. It has also been generally
recognized that the examination of national and international strategies for
sustainable and ecologically sound development should not be used as a pretext
for imposing new conditions on the granting of funding or development aid or to
create unjustified trade barriers.
247. At the same time, the worldwide partnership creates solemnly
acknowledged obligations towards present and future generations which involve
corresponding rights for the recipients - individuals, groups and peoples. The
State and other parties to development, including the international agencies,
have the duty, among others, to refrain from activities damaging to the
environment and to take positive measures for preserving it. It is recognized
in particular that there is a need for studies of the impact of development
projects on the environment and on the fundamental rights of the populations
concerned, who are entitled to be duly informed of, and closely associated
with, the decision-making process, either directly or through their freely
elected representatives. Finally, it is acknowledged that vulnerable groups
should be protected from the negative consequences of the application of
structural adjustment programmes and of economic reforms undertaken by many
countries. The Special Rapporteur notes with interest the significant changes
beginning to occur within the international financing agencies, with a view to
assuming responsibility for these questions.
248. Environmental damage has direct effects on the enjoyment of a series of
human rights, such as the right to life, to health, to a satisfactory standard
of living, to sufficient food, to housing, to education, to work, to culture,
to non-discrimination, to dignity and the harmonious development of one's
personality, to security of person and family, to development, to peace, etc.
249. In this context, it should be stressed how vulnerable certain peoples,
populations, groups or categories of persons are to ecological hazards and
natural disasters whether caused by man or generated by a state of war and
conflict. The Special Rapporteur has pointed out that the poor and disadvantaged,
minority groups, women, children, migrant workers and their families, refugees
and displaced persons are generally those most affected and least protected.
The transfer of toxic substances and waste to the developing countries also
gives cause for serious concern.
250. The Special Rapporteur noted indigenous peoples' special ties with the
land and the environment, and their particular vulnerability to ecological
hazards. She stresses the need for effective protection of their rights and
calls for the rapid adoption of the draft declaration finalized by the Working
Group on Indigenous Populations.
251. Conversely, human rights violations in their turn damage the
environment. This is true of the right of peoples to self-determination and
their right to dispose of their wealth and natural resources, the right to
development, to participation, to work and to information, the right of
peaceful assembly, freedom of association, freedom of expression, etc.
252. In the light of the foregoing, the Special Rapporteur is of the view
that effective implementation of the right to a satisfactory environment cannot
be dissociated from the twinned efforts to preserve the environment and ensure
the right to development. Nor can it be achieved without resolute action to ensure
the enjoyment of all human rights.
253. In order to give practical expression to the right to a satisfactory
environment, there is a need for development strategies that are directed
towards the implementation of a substantive part of that right (the right to
development, to life, to health, to work, etc.). These must go hand in hand
with the promotion of the related procedural aspects (due process, right of
association and of assembly, freedom of expression, right of recourse, etc.).
254. Implementation of the right to a satisfactory environment calls for
commitment and participation on the part of everyone at all levels, beginning
with the family unit, where environmental education starts. It depends on the
existence of effective national legal remedies; local administrative or other
courts, national institutions and ombudsmen provide guarantees of the
protection of this right. The Special Rapporteur notes with satisfaction the
development of such recourse guarantees in many countries.
255. The right to a satisfactory environment is also a right to prevention
which gives a new dimension to the right to information, education and
participation in decision-making. The right to restitution, indemnification,
compensation and rehabilitation for victims must also be seen from the angle of
the special responsibility that would follow from the absence of preventive
measures.
256. The right to a satisfactory environment is also a right to the
"conservation" of nature for the benefit of future generations. This
"futuristic" dimension restores to human rights their original
purpose, as embodied in the Charter of the United Nations and the Universal
Declaration of Human Rights of 1948. It foreshadows a "new public
order" of human rights which would set acceptable limitations on those
rights in the general interest while entailing corresponding duties on the part
both of the public authorities and of individuals, associations and other
components of civil society.
257. To conclude her study, the Special Rapporteur wishes to cite the
argument of Mr. A. Kiss that international law must be based on values, the
fundamental values of this century being human rights and the environment. She
shares this view and notes that these values are intrinsically bound up with
development seen as a worldwide phenomenon resting on various pillars such as
peace, equity, progress, social justice and participatory democracy at all
levels, including the international level. As recalled by the Secretary-General
in May 1994 when he presented his agenda for development which covers the five
dimensions of peace, the economy, the environment, social justice and
democracy, "without peace, human energies cannot be productively employed;
without economic growth, there can be no sustained, broad-based improvement in
material well-being; without protection of the environment, the basis of human
survival will be eroded, without societal justice, mounting inequalities will
threaten social cohesion; without political participation in freedom, development
will remain fragile and perpetually at risk".
B. Recommendations
258. The "human rights" component of the right to a satisfactory
environment lends itself, however, to immediate implementation by various
bodies, under existing mechanisms for following up regional and international
human rights instruments. The practice being developed within those bodies is
decisive and should bring into sharper focus the content of the right to a
satisfactory environment, the ways and means of implementing it, and the
related procedural aspects.
259. The Special Rapporteur recommends that the various human rights bodies
should examine, in the various fields of concern to them, the environmental
dimension of the human rights under their responsibility. She suggests in
particular that the following themes should be regularly examined by the
bodies, committees, working groups and special rapporteurs concerned:
(a) Commission on the Status of Women and Committee on the Elimination of
Discrimination against Women: rights of women and the environment, with
emphasis on factors giving rise to de facto discrimination and impeding
participation in the decision-making process;
(b) Committee on the Rights of the Child: vulnerability of children in the
face of ecological hazards; protection of children against environmental
degradation with particular reference to the phenomenon of street children;
education of children with a view to the preservation of the environment;
(c) Committee on the Elimination of Racial Discrimination - CERD: racial
discrimination and the environment and, more particularly, the tendency for
disadvantaged and marginalized groups to be more exposed to environmental
hazards. In addition, the Committee could establish appropriate case law for
the treatment of complaints addressed to it in conformity with the provisions
of the International Convention on the Elimination of All Forms of Racial
Discrimination;
(d) Committee on Economic, Social and Cultural Rights. The Committee could
frame general comments with a view to defining the interaction of the
environment with the human rights under its responsibility. It could moreover
examine, in the context of ongoing studies, the possibility of including
communications on ecological matters in any procedure established by means of a
protocol for the treatment of complaints by individuals or States;
(e) Human Rights Committee. The Committee could expand its general comment
on the right to life in order to include environmental concerns or formulate a
general comment defining the links existing between civil and political rights
and the environment. Moreover, it should be able, through dealing with
complaints, to establish case law that will accommodate environmental concerns;
(f) Working Group on the right to development: environment, debt and
development; development, environment and the funding institutions;
participation by the people in activities for development and the environment,
structural adjustment programmes, impact on the environment and underprivileged
populations and groups;
(g) Working Group entrusted with the preparation of a declaration on the
right and responsibility of individuals, groups and organs of society to
promote and protect universally recognized human rights and fundamental
freedoms. The group could contemplate the inclusion of specific provisions
relating to rights and duties in respect of the preservation of the
environment;
(h) The working groups, special rapporteurs on thematic questions and
country rapporteurs could also, within the areas covered by their mandates,
consider the impact of the environment on the enjoyment of human rights and
possible measures for correcting situations where rights violations have been
observed and help the victims to incorporate them into their rights, particularly
with regard to restitution, compensation or rehabilitation.
260. The interest shown in the impact of the environment on the enjoyment of
human rights means that human rights bodies are already in demand and are
increasingly being called on to pronounce on the question. In order to avoid
disparate practices and to promote the development of an overall, integrated
and coordinated view in the approach to the various phenomena which will be
dealt with in an inevitably sectoral way by existing bodies, given their
respective areas of competence, it is suggested that:
A coordination centre should be set up to deal with the question within the
United Nations Centre for Human Rights;
A special rapporteur of the Commission on Human Rights should be appointed
with a mandate similar to that generally given to special rapporteurs on
thematic questions;
A seminar should be held under the auspices of the Centre for Human Rights
to help formulate practical recommendations on the way in which the right to a
satisfactory environment could be rationally incorporated into the activities
of human rights bodies.
261. In submitting the draft declaration of principles on human rights and
the environment contained in the annex to this report to the Sub-Commission on Prevention
of Discrimination and Protection of Minorities and the Commission on Human
Rights, the Special Rapporteur expresses the hope that the draft will help the
United Nations to adopt, in the course of the present United Nations Decade of
International Law, a set of norms consolidating the right to a satisfactory
environment - defined as an integral part of the world partnership for peace,
development and progress for all.
Annex I
DRAFT PRINCIPLES ON HUMAN RIGHTS AND THE ENVIRONMENT
Preamble
Guided by the Charter of the United Nations, the Universal
Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights, the International Covenant on Civil and Political Rights, the
Vienna Declaration and Programme of Action of the World Conference of Human
Rights, and other relevant international human rights instruments,
Guided also by the Stockholm Declaration of the United Nations
Conference on the Human Environment, the World Charter for Nature, the Rio
Declaration on Environment and Development, Agenda 21: Programme of Action for
Sustainable Development, and other relevant instruments of international
environmental law,
Guided further by the Declaration on the Right to Development, which
recognizes that the right to development is an essential human right and that
the human person is the central subject of development,
Guided by fundamental principles of international humanitarian law,
Reaffirming the universality, indivisibility and interdependence of
all human rights,
Recognizing that sustainable development links the right to
development and the right to a secure, healthy and ecologically sound
environment,
Recalling the right of peoples to self-determination by virtue of
which they have the right freely to determine their political status and to
pursue their economic, social and cultural development,
Deeply concerned by the severe human rights consequences of
environmental harm caused by poverty, structural adjustment and debt programmes
and by international trade and intellectual property regimes,
Convinced that the potential irreversibility of environmental harm
gives special responsibility to prevent such harm,
Concerned that human rights violations lead to environmental degradation
and that environmental degradation leads to human rights violations,
Declare the following principles:
Part I
1. Human rights, an ecologically sound environment, sustainable development
and peace are interdependent and indivisible.
2. All persons have the right to a secure, healthy and ecologically sound
environment. This right and other human rights, including civil, cultural,
economic, political and social rights, are universal, interdependent and
indivisible.
3. All persons shall be free from any form of discrimination in regard to
actions and decisions that affect the environment.
4. All persons have the right to an environment adequate to meet equitably
the needs of present generations and that does not impair the rights of future
generations to meet equitably their needs.
Part II
5. All persons have the right to freedom from pollution, environmental
degradation and activities that adversely affect the environment, threaten
life, health, livelihood, well-being or sustainable development within, across
or outside national boundaries.
6. All persons have the right to protection and preservation of the air,
soil, water, sea-ice, flora and fauna, and the essential processes and areas
necessary to maintain biological diversity and ecosystems.
7. All persons have the right to the highest attainable standard of health
free from environmental harm.
8. All persons have the right to safe and healthy food and water adequate to
their well-being.
9. All persons have the right to a safe and healthy working environment.
10. All persons have the right to adequate housing, land tenure and living
conditions in a secure, healthy and ecologically sound environment.
11. (a) All persons have the right not to be evicted from their homes or
land for the purpose of, or as a consequence of, decisions or actions affecting
the environment, except in emergencies or due to a compelling purpose
benefiting society as a whole and not attainable by other means.
(b) All persons have the right to participate effectively in decisions and
to negotiate concerning their eviction and the right, if evicted, to timely and
adequate restitution, compensation and/or appropriate and sufficient
accommodation or land.
12. All persons have the right to timely assistance in the event of natural
or technological or other human-caused catastrophes.
13. Everyone has the right to benefit equitably from the conservation and
sustainable use of nature and natural resources for cultural, ecological,
educational, health, livelihood, recreational, spiritual and other purposes.
This includes ecologically sound access to nature.
Everyone has the right to preservation of unique sites consistent with the
fundamental rights of persons or groups living in the area.
14. Indigenous peoples have the right to control their lands, territories
and natural resources and to maintain their traditional way of life. This
includes the right to security in the enjoyment of their means of subsistence.
Indigenous peoples have the right to protection against any action or course
of conduct that may result in the destruction or degradation of their
territories, including land, air, water, sea-ice, wildlife or other resources.
Part III
15. All persons have the right to information concerning the environment.
This includes information, howsoever compiled, on actions or courses of conduct
that may affect the environment and information necessary to enable effective
public participation in environmental decision-making. The information shall be
timely, clear, understandable and available without undue financial burden to
the applicant.
16. All persons have the right to hold and express opinions and to
disseminate ideas and information regarding the environment.
17. All persons have the right to environmental and human rights education.
18. All persons have the right to active, free and meaningful participation
in planning and decision-making activities and processes that may have an
impact on the environment and development. This includes the right to a prior
assessment of the environmental, developmental and human rights consequences of
proposed actions.
19. All persons have the right to associate freely and peacefully with
others for purposes of protecting the environment or the rights of persons
affected by environmental harm.
20. All persons have the right to effective remedies and redress in
administrative or judicial proceedings for environmental harm or the threat of
such harm.
Part IV
21. All persons, individually and in association with others, have the duty
to protect and preserve the environment.
22. All States shall respect and ensure the right to a secure, healthy and
ecologically sound environment. Accordingly, they shall adopt administrative, legislative
and other measures necessary to effectively implement the rights in this
Declaration.
These measures shall aim at the prevention of environmental harm, at the
provision of adequate remedies, and at the sustainable use of natural resources
and shall include, inter alia,
- Collection and dissemination of information concerning the environment;
- Prior assessment and control, licensing, regulation or prohibition of
activities and substances potentially harmful to the environment;
- Public participation in environmental decision-making;
- Effective administrative and judicial remedies and redress for
environmental harm or the threat of such harm;
- Monitoring, management and equitable sharing of natural resources;
- Measures to reduce wasteful processes of production and patterns of
consumption;
- Measures aimed at ensuring that transnational corporations, wherever they
operate, carry out their duties of environmental protection, sustainable
development and respect for human rights; and
- Measures aimed at ensuring that the international organizations and
agencies to which they belong observe the rights and duties in this
Declaration.
23. States and all other parties shall avoid using the environment as a
means of war or inflicting significant, long-term or widespread harm on the
environment, and shall respect international law providing protection for the
environment in times of armed conflict and cooperate in its further
development.
24. All international organizations and agencies shall observe the rights
and duties in this Declaration.
Part V
25. In implementing the rights and duties in this Declaration, special
attention shall be given to vulnerable persons and groups.
26. The rights in this Declaration may be subject only to restrictions
provided by law and which are necessary to protect public order, health and the
fundamental rights and freedoms of others.
27. All persons are entitled to a social and international order in which
the rights in this Declaration can be fully realized.
Annex II
MEETINGS WITH, AND CONTRIBUTIONS OF, EXPERTS AND
NON-GOVERNMENTAL ORGANIZATIONS
1. The Special Rapporteur appreciates the strong interest of
non-governmental organizations in her work and recognizes their many valuable
contributions. Since the beginning of her mandate, representatives of many
non-governmental organizations have met the Special Rapporteur, both
individually and in groups, to express their views and to submit information.
2. The first group meeting with representatives of non-governmental
organizations took place in August 1990 in Geneva when the Special Rapporteur
met with representatives of more than 20 non-governmental organizations. At
that session, facilitated by the Association des Consultants Internationaux en
Droits de l'Homme in conjunction with the Sierra Club Legal Defense Fund, the
Special Rapporteur was presented with situations that clearly illustrated to
her the scope and depth of human rights violations arising from environmental
problems and the human rights violations that cause environmental degradation.
3. A second major consultation took place in the spring of 1991 in two parts
- the first in New York and the second in San Francisco. These sessions were
funded by the Sierra Club Legal Defense Fund and assisted by the United Nations
Centre for Human Rights Liaison Office in New York. At both these sessions the
Special Rapporteur was accompanied by a staff member of the Centre for Human
Rights. At the session in New York, the Special Rapporteur met with
representatives of a number of non-governmental organizations and scholars in
the field invited by the Natural Heritage Institute and the Four Directions
Council.
4. In San Francisco, the Sierra Club Legal Defense Fund hosted a series of
meetings from 28 April to 4 May 1991. During that period, the Special
Rapporteur met with representatives of a number of organizations, and was also
provided with documentation.
5. During the United Nations Conference on Environment and Development in
Rio de Janeiro (1992), the Sierra Club Legal Defense Fund hosted a special
session for the Special Rapporteur to enable her to meet with representatives
of non-governmental organizations and individuals concerned with human rights
and the environment from all parts of the world, to exchange views and to
receive information.
6. During the World Conference on Human Rights in Vienna (1993), the Special
Rapporteur met informally with a number of representatives from
non-governmental organizations and experts.
7. In the course of these consultations with non-governmental organizations
and experts, a number of substantive and structural concerns were expressed,
including:
(a) Self-determination and the environment, especially with respect to the
relationship between indigenous peoples and the massive export of natural
resources and related ecological destruction;
(b) The lack of timely and relevant information about projects with severe
environmental impacts;
(c) The imbalance between the resources available to groups interested in
protecting human rights and the environment and the resources available to
Governments and/or multinational enterprises;
(d) The human rights and environmental implications of large-scale
disasters;
(e) The forced relocation of indigenous peoples and the subsequent
ecological ruin of their traditional lands and sacred sites;
(f) The insufficient attention paid by international financial institutions
to the special environmental needs of indigenous peoples and other vulnerable
groups.
8. Following the Special Rapporteur's recommendation, contained in her 1993
report, that the Centre for Human Rights should convene an expert meeting on
human rights and the environment, the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, in its resolution 1993/32 of 25
August 1993, invited the Secretary-General to organize such a meeting. Due to
serious budgetary problems, the Secretary-General was unable to do so. However,
the Sierra Club Legal Defense Fund, in association with the Société suisse pour
la protection de l'environnement and the Association mondiale pour l'école
instrument de paix, did sponsor the meeting, with the Centre for Human Rights
providing the facilities and staff.
9. The expert meeting on human rights and the environment was held from 15
to 19 May 1994 at Geneva, and attended by the following experts:
James Cameron Foundation for International Environmental Law and
Development, London
David Goldberg University of Glasgow; International Federation of Human
Rights
Mario Ibarra International Indian Treaty Council
Alexandre Kiss Centre for Environmental Law; University of Strasbourg;
European Council for Environmental Law; International Institute of Human Rights
Miloon Kothari Centre for Housing Rights and Evictions; Habitat
International Coalition
Meenakshi Raman Consumers Association of Penang, Malaysia
Dinah Shelton Santa Clara University
Anthony Simpson Australian Conservation Foundation; International Commission
of Jurists
Tobheka Thamage Tsoga Environmental Resources Centre, South Africa
Antonio Augusto Judge ad hoc, Inter-American Court of Human
Cancado Trindade Rights; University of Brasilia
Lauri Adams)
David McDonald)
Adriana Fabra Aguilar) Sierra Club Legal Defense Fund
Yves Ladore)
Karen Parker)
Neil Popovic)
10. The following persons were also present: Mr. Philip Alston, Chairperson
of the Committee on Economic, Social and Cultural Rights; Mr. Francis Deng, Representative
of the Secretary-General on internally displaced persons; Mrs. Erica-Irene
Daes, Chairperson of the Working Group on Indigenous Populations; Mr. Rajindar
Sachar, Special Rapporteur on the right to adequate housing.
11. The following non-governmental organizations contributed to the meeting
through representation, comments and/or recommendations: International
Commission of Jurists, Disabled People's International, International
Educational Development, Human Rights and Natural Heritage Institute.
12. As part of the Geneva expert session, the Special Rapporteur also met
representatives of the World Health Organization, the International Committee
of the Red Cross and the Geneva Liaison Office of the United Nations
Environment Programme for an exchange of views regarding the draft declaration
and other issues of common concern.
13. The Special Rapporteur also received information on human rights and the
environment from non-governmental organizations during the course of debates on
human rights and the environment in both the Sub-Commission and the Commission
on Human Rights.
Annex III
DEVELOPMENTS IN NATIONAL LEGISLATION AND PRACTICES
A. Summary of constitutional provisions
In her two progress reports in 1992 (E/CN.4/Sub.2/1992/7 and Add.1) and in
her report of 1993 (E/CN.4/Sub.2/1993/7), the Special Rapporteur noted that
many countries had devoted constitutional provisions to the environment. The
information reproduced below comprises the data included in the previous
reports and those recently communicated to the Special Rapporteur.
1. Afghanistan
The 1990 Constitution proclaims that "the State shall adopt and
implement the necessary measures for the protection of nature, natural wealth
and reasonable utilization of natural resources, improvement of the living
environment, prevention of pollution of water and air, and the conservation and
survival of animals and plants (chap. II, art. 32).
2. South Africa
The Constitution of South Africa, which came into force on 27 April 1994, stipulates
that "Every person shall have the right to an environment which is not
detrimental to his or her health or well-being" (sect. 29).
3. Albania
The 1976 Constitution stipulates that "protection of the land, natural
riches, waters and the atmosphere from damage and pollution is a duty of the
State, of economic and social organizations and of all citizens" (chap.
1B, art. 20).
4. Algeria
The revised Constitution of 1989 stipulates, in essence, that every citizen
has a duty to protect public property and the interests of the national
community and to respect the property of others. Under article 17, public
property encompasses the various components of the ecosystem (title I, chap.
III, art. 63).
5. Germany
It is the responsibility of the legislature to protect the natural bases of
man's existence, with due regard for prevention, the "polluter-pays"
principle and cooperation, and to promote uniform ecological conditions of a
high standard (text of 1990 supplementing the Basic Law, chap. VII, art. 34).
6. Angola
The 1992 Constitution stipulates that "the Government of Angola ...
shall seek to protect and preserve the unique environmental heritage of Angola
in order to ensure the quality of the human environment for all" (art.
IX).
7. Bahrain
The 1973 Constitution proclaims that the State shall ensure the preservation
and proper utilization of natural resources, which are its property (art. 11,
second part).
8. Bolivia
The 1967 Constitution provides that "assets in the patrimony of the
nation constitute inviolable public property, and it is the duty of every
inhabitant ... to respect and protect that property" (art. 137).
9. Brazil
The 1988 Constitution attaches particular importance to protecting the
environment and combating pollution in all its forms. Effective enjoyment of
the rights listed in article 225 is accompanied by certain obligations on the
part of the authorities, such as the imposition of criminal and administrative
penalties for activities considered detrimental to the environment. Article 225
(1) provides that "in order to ensure that this right is effectively
available, it is incumbent on the Government to:
I. Preserve and restore essential ecological processes and arrange for the
ecological management of species and ecosystems;
II. Preserve the diversity and integrity of the genetic patrimony of Brazil
and oversee the activities of entities engaged in research and manipulation of
genetic material;
III. Define, in all units of the Federation, the geographical areas and
components thereof that are to be specially protected (these decisions may be
amended or repealed only by the legislature and any use that compromises the
integrity of the features which justify protection of such areas shall be
prohibited);
IV. Require, pursuant to the law, an environmental impact study to be made
prior to the installation of a project or activity liable to cause significant
harm to the environment, and the results of such study to be made public.
V. Monitor the development, marketing and use of techniques, methods and
substances that present a risk to life, the quality of life or the environment;
VI. Promote environmental education at all levels of instruction, and help
to increase public awareness of the need to preserve the environment;
VII. Protect the flora and fauna; practices which put their ecological
function at risk, lead to the extinction of species or subject animals to cruel
treatment are hereby prohibited."
Certain areas are specially protected and the rights of indigenous
populations, particularly their rights over the lands they traditionally
occupy, are recognized by the Constitution (art. 23).
10. Bulgaria
The 1991 Constitution provides that "Bulgaria shall ensure the
protection and conservation of the environment, the sustenance of animals and
the maintenance of their diversity, and the rational use of ... natural ...
resources", and that while "citizens have the right to a healthy and
favourable environment ... they [also] have an obligation to protect the
environment" (chap. II, art. 31).
11. Burkina Faso
The 1991 Constitution provides for "the right to a healthy
environment" and stipulates that "the protection, defence and
promotion of the environment shall be the duty of all" (title I, arts. 30
and 31).
12. Chile
The 1980 Constitution guarantees everyone "the right to live in an
environment free from contamination. It is the duty of the State to watch over
the protection of this right and the preservation of the environment"
(art. 19 (8)). An appeal may be lodged to ensure observance of these
provisions.
13. China
The 1982 Constitution stipulates that "the State shall protect and
improve the living environment and the ecological environment, and prevent and
remedy pollution and other public hazards". It also ensures the rational
use of natural resources and protects rare animals and plants (chap. I, arts. 9
and 26).
14. Colombia
The 1991 Constitution obliges the government authorities and the people to
protect the cultural and natural assets of the nation. It establishes a link
between public health and protection of the environment (arts. 8, 49, 79, 80,
86 and 88).
15. Korea
The 1987 Constitution proclaims that "All citizens have the right to a
healthy and pleasant environment. The State and all citizens shall endeavour to
protect the environment" (chap. II, art. 35).
16. Cuba
The amended 1992 Constitution provides, in essence, that the State shall
protect the environment and the country's natural resources, over which it
shall exercise sovereignty. The State also recognizes the close link between
the environment and sustainable economic and social development, which ensures
the survival, well-being and security of present and future generations.
Citizens also have a duty to contribute to the protection of nature's rich
potential (arts. 11 (b) and 27).
17. El Salvador
The 1983 Constitution stipulates that "The State shall maintain
permanent control over the quality of pharmaceutical, chemical and food
products and over ... atmospheric conditions which may affect health and
well-being" (chap. 1, art. 69).
18. United Arab Emirates
The 1971 Constitution proclaims that "The natural resources and wealth
of each Emirate shall be considered the public property of that Emirate.
Society shall be responsible for the protection and proper exploitation of such
natural resources and wealth for the benefit of the national economy"
(chap. 2, art. 23).
19. Ecuador
The 1983 Constitution guarantees the right to live in an environment free of
contamination (title II, sect. 1, art. 19 (2)).
20. Spain
The 1978 Constitution accords everyone "the right to enjoy an
environment suitable for the development of the person" and imposes on
them "the duty to preserve it". In addition "The public
authorities shall concern themselves with the rational use of all natural
resources". Any one violating these provisions is liable to criminal or
administrative sanctions (chap. III, art. 45).
21. Ethiopia
The 1987 Constitution guarantees maintenance of the ecological balance and
rational distribution of human settlements "in order to create favourable
conditions for development" (part II, arts. 10 and 55).
22. Russian Federation
The 1993 Constitution stipulates that "Every person has an obligation
to protect nature, preserve its wealth and improve the environment" (art.
58). Damage to the environment is punishable by law and may be subject to
compensation. The protection and rational use of natural resources constitute a
further established principle (art. 49).
23. Greece
The 1975 Constitution provides that the protection of the natural and
cultural environment is a duty of the State (art. 24).
24. Guatemala
The 1985 Constitution promotes social, economic and technological
development which will prevent pollution of the environment and maintain the
ecological balance (chap. II, sect. IV, art. 97).
25. Equatorial Guinea
The 1982 Constitution stipulates that the State recognizes the right to the
protection of health (title VI, chap. II, art. 60).
26. Guyana
The 1980 Constitution obliges every citizen to participate in activities to
improve the environment and protect the health of the nation. In addition, the
interests of present and future generations are taken into account, and the use
of natural resources must be rational (arts. 25 and 36).
27. Haiti
The 1987 Constitution imposes on citizens the civic duty "to respect
and protect the environment". "Practices that are liable to disturb
the ecological balance are strictly prohibited", as is the importation of
"wastes or residues ... from foreign sources" (title XI, chap. II,
arts. 253 and 258).
28. Honduras
The 1982 Constitution stipulates that "the State shall maintain a
satisfactory environment for the protection of the health of all" (chap.
VII, art. 145).
29. Hungary
The revised Constitution of 1990 "recognizes and enforces the right of
everyone to a healthy environment". Physical and mental health, safety in
the workplace and the provision of medical care are further rights recognized
by the Constitution (chap. I, sect. 18, and chap. XII, sect. 70/D).
30. India
The 1977 Constitution, as amended in 1985, provides that "The State
shall endeavour to protect and improve the environment and to safeguard the
forests and wildlife" and makes it the duty of every citizen "to
protect and improve the natural environment" (part IV, arts. 48 A and 51
A).
31. Islamic Republic of Iran
The 1980 Constitution institutes the protection of the environment in which
the present and future generations must live as a public responsibility.
Economic or other activities which pollute the environment are prohibited
(chap. IV, art. 50).
32. Malta
The 1964 Constitution stipulates that "The State shall safeguard the
landscape and the historical and artistic patrimony of the Nation" (chap.
II, art. 9).
33. Mexico
The 1917 Constitution, as amended in 1987, provides that the State shall
have the right to regulate the use of natural resources which are susceptible
of appropriation, in order to ensure a more equitable distribution of public
wealth, to achieve well-balanced development and to improve the living
conditions of the urban and rural population. A link is established between the
preservation of the ecological balance, human settlements and the protection of
natural resources (art. 27).
34. Mongolia
The 1992 Constitution recognizes the various components of the ecosystem as
subject to national sovereignty and hence State protection (chap. I, art. 6).
It also recognizes the right of citizens to a healthy and safe environment, the
right to be protected against environmental pollution and ecological
imbalances, and the right to seek legal redress for violations of those rights.
It also imposes on citizens the duty to protect nature and the environment
(chap. II, arts. 16 and 17).
35. Mozambique
The 1990 Constitution provides that "The State shall promote efforts to
guarantee the ecological balance and the preservation of the environment for
the betterment of the quality of life of its citizens" (chap. IV, art.
37).
36. Namibia
The 1990 Constitution, with a view to promoting the welfare of the people,
stipulates that the State shall maintain ecosystems, essential ecological
processes and biological diversity. Protection of the interests of present and
future generations and measures against dumping or recycling of foreign nuclear
and toxic waste are other responsibilities of the State (chap. II, art. 95).
37. Nepal
The 1990 Constitution defines as State priorities the protection of the
environment throughout the country, the prevention of damage to the environment
and enhancing the consciousness of the public regarding environmental cleanliness
(art. 26).
38. Nicaragua
Under the 1987 Constitution,
Nicaraguans have the right to live in a healthy environment, which the State
has the duty to preserve, develop and restore. The same is true of natural
resources, which form part of the national heritage and must be exploited in a
rational way (title IV, chap. III, art. 60 and title VI, chap. I, art. 102).
39. Nigeria
The 1979 Constitution stipulates that "exploitation of human or natural
resources for reasons other than the good of the community shall be
prohibited" (chap. II, art. 18).
40. Panama
The 1980 Constitution provides that "It is a fundamental duty of the
State to see to the preservation of ecological conditions and to prevent
pollution of the environment and imbalance in ecosystems, with a view to
ensuring economic and social development" (chap. VI, art. 110).
41. Papua New Guinea
The 1984 Constitution defines the fourth goal of the State as the
conservation of the environment and the rational use of natural resources
"for the benefit of future generations". In this respect, all persons
have the basic obligation to "protect [the country] and to safeguard the
national wealth, resources and environment" (chap. IV).
42. Paraguay
The 1967 Constitution provides that "The State shall conserve the
forestry resources of the country, as well as other renewable natural
resources" (chap. VI, art. 132).
43. Netherlands
The 1989 Constitution accords priority to any action by the State to promote
the "distribution of wealth", regional planning, and the protection
and improvement of the environment (art. 20).
44. Peru
The 1979 Constitution provides that "Everyone has the right to live in
a healthy environment" and that "It is the obligation of the State to
prevent and control environmental pollution". It also recognizes that
natural resources are the patrimony of the nation (chap. II, arts. 118 and
123).
45. Philippines
The 1986 Constitution protects exclusively the country's marine wealth and
the rights of its fishermen (art. XII, sects. 2 and 7).
46. Poland
The 1989 Constitution provides that citizens have the right to a natural
environment and the duty to protect it (chap. VIII, art. 71).
47. Portugal
The 1982 Constitution provides that "Everyone shall have the right to a
healthy and ecologically balanced human environment and the duty to defend
it". The State also has the duty to protect the environment, and the
Constitution identifies the measures to be taken to that end (part I, title
III, chap. II, art. 66).
48. Lao People's Democratic Republic
The 1991 Constitution imposes on all organizations and all citizens the duty
to protect the environment and natural resources (chap. II, art. 17).
49. Romania
Article 22 of the 1991 Constitution (see E/CN.4/Sub.2/1992/7), which was
contained in the draft constitution, does not appear in the Constitution in the
form in which it was adopted.
50. Seychelles
The 1992 Constitution (Preparation and Promulgation) Act states that
"The State pledges itself to protect, preserve and improve the environment
and natural resources", and that it is the duty of every citizen to do
likewise (chap. IV, arts. 40 and 41).
51. Slovakia
The 1992 Constitution accords everyone the right to a favourable environment
and imposes the obligation to protect and promote the environment and cultural
heritage. It also recognizes the right of everyone to "timely and complete
information about the state of the living environment and about the causes and
effects of this state" (chap. II, arts. 44 and 45).
52. Slovenia
The 1991 Constitution provides that "All persons have the right to a
healthy living environment in accordance with the law" and that "The
State shall ensure a healthy living environment". It further provides that
"All persons are required ... to protect natural points of interest and
cultural monuments" (title III, arts. 72 and 73).
53. Sri Lanka
The 1977 Constitution stipulates that
"The State shall protect, preserve and improve the environment for the
benefit of the community" and makes it the duty of every person "to
protect nature and conserve its riches" (chap. VI, arts. 27 and 28).
54. Sweden
The 1975 Constitution, as amended in 1978, provides that "it shall be
incumbent on the community to guarantee the right to work, housing and
education, and to promote social care and security, as well as a favourable
living environment" (chap. I, art. 2, para. 2).
55. Taiwan
The 1947 Constitution provides that the State shall foster, inter alia,
the development of "water conservancy" and "public health",
and "protect the land and ... assist in its development" (chap. XIII,
sect. 6, art. 169).
56. Tanzania
The 1984 Constitution calls for guarantees that natural resources will be
preserved, developed and used for the benefit of all citizens. It also provides
that "everyone has the responsibility of conserving natural
resources" (sect. 2, paras. 9.1 and 27.1).
57. Chad
Under the 1989 Constitution, one of the fundamental responsibilities of the
State is "to preserve the environment and natural resources" (art.
1).
58. Thailand
The 1978 Constitution stipulates that "The State shall preserve the
environmental balance and eliminate pollution, which jeopardizes the health and
hygiene of the people", and "shall have an appropriate demographic
policy" (chap. V, arts. 65 and 69).
59. Turkey
The 1982 Constitution stipulates that "Every person has the right to
live in a healthy, balanced environment." It is the duty of the State to
protect the environment (chap. VIII, sect. A, art. 56).
60. Vanuatu
The 1980 Constitution stipulates that every person has the duty "to
protect (Vanuatu) and to safeguard the national wealth, resources and the
environment in the interests of the present generation and future
generations" (title II, chap. II, art. 7).
61. Viet Nam
The 1980 Constitution provides that all the wealth and natural resources of
the State are the property of the people and that everyone has the duty to
protect and improve the environment (chap. 2, arts. 19, 20 and 36).
B. National legislation
In her earlier progress reports, the Special Rapporteur cited provisions of
national legislation on the environment. Other examples received after
publication of those reports are set out below.
1. Germany
A joint Bundestag-Bundesrat Committee on the Constitution has recommended
that environmental protection be incorporated in the Basic Law as a national
objective. The new clause reads as follows: "For the sake of present and
future generations, the State shall protect the natural sources of life within
the framework of the constitutional order through the Legislature and, in
accordance with the law and the principles of justice, the executive and the
judiciary".
2. Egypt
The Government of Egypt has informed the Special Rapporteur of the
promulgation of Act No. 4/1994, on the environment, as part of the national
effort to ensure exercise of the right to a healthy environment. The Act
establishes the rules for protection of the atmosphere and marine and land
environments, governs the operation of environment monitoring bodies and
defines their functions in the context of coordination. It also embodies the
principle of compensation of individuals and corporate entities for damage
caused by pollution.
3. United States of America
In a communication addressed to the Special Rapporteur, the Government of
the United States of America states that: "the U.S. considers human rights
and environmental preservation to be two of the highest priorities of this
Government. On 11 February 1994, President Clinton issued an Executive Order to
the heads of all departments and agencies of the U.S. Government on the
subject: 'Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations'. The purpose of this Executive Order
was to underscore certain provisions of existing U.S. laws that can help ensure
that all communities in the United States of America live in a safe and
healthful environment".
4. Greenland
Greenland has embarked on a national and regional process for the protection
of indigenous populations in the Arctic with a view to ensuring sustainable
development for them.
5. Islamic Republic of Iran
Section 1 of the Environment Protection and Enhancement Act of 1974
stipulates that "None of the restrictions and regulations to be
established in respect of the areas and regions mentioned in section 5 (a)
hereof shall conflict with the ownership right and usufruct exercised
legally by individuals within such areas and regions". Section 11 also
provides that "Considering the requirements and criteria established under
the regulations referred to in section 10 hereof, the Department shall distinguish
such factories and workshops that contribute to the pollution of the
environment, and shall give the owners or managers thereof notice either to do
away with the causes of the pollution within a definite period of time or to
discontinue operation [...]. In the event that any person concerned
should object to such notice he may lodge a complaint with the local
court of first instance [...]."
7. Nepal
Following the United Nations Conference on Environment and Development, the
Government of Nepal implemented numerous measures for the protection of the
environment. In 1993, the Government adopted the "National Environmental
Impact Assessment Guidelines" as part of a general policy to promote an
integrated approach to the environment and development.
8. Romania
Draft legislation on the protection of the environment provides that the
State recognizes the right of everyone to a healthy environment. It sets out a
list of measures to be taken by the State to ensure the effective enjoyment of this
right.
C. Summary of new domestic cases
For those previously analysed by the Special Rapporteur, please see
documents E/CN.4/Sub.2/1992/7 and E/CN.4/Sub.2/1993/7.
1. Canada
In Regina v. Sparrow, the Canadian Supreme Court recognized the
existence of aboriginal rights and delineated a test to determine whether there
had been a prima facie infringement of those rights. The appellant, a member of
the Musqueam Band, was charged with fishing with a drift net longer than that
permitted by his Band's food fishing licence. The Court held that the
Constitution Act, 1982 § 35 (1), which recognizes and affirms existing
aboriginal rights, requires that any regulation infringing upon indigenous
rights must be justified by a valid objective consistent with the Government's
fiduciary duty toward the aboriginal peoples. Parties challenging legislation
as a prima facie infringement of indigenous rights must show: (i) that the
limitation is unreasonable; (ii) that the regulation imposes an undue burden;
and (iii) that it denies the holders their preferred means of exercising that
right. The Court found the Government's public interest objective to be so
vague as to provide no meaningful guidance and so broad as to be unworkable. It
allowed the objective of conservation and resource management, however, as
consistent with aboriginal beliefs, practices and rights. If on remand it was
found that there had been an infringement, indigenous groups would enjoy
priority allocation over other commercial and consumer groups after legitimate
conservation needs had been met.
2. Costa Rica
The Supreme Court of Costa Rica affirmed the right to a healthy environment
(Constitutional Chamber of the Supreme Court Vote No. 3705, 30 July 1993). The
plaintiff brought the action on the grounds that his and his neighbours' rights
to life and a healthy environment had been violated because a cliff in their
neighbourhood had been used as a dump. The Ministry of Health submitted that he
had issued an order to buy lots for an alternative dump site within three
months. The Court ordered that the dump be closed immediately and held that the
authorities had not been effective or diligent enough in carrying out their
obligation to protect life, health and the environment. To this effect, the Court
quoted the decision of the lower court which asserted that life "is only
possible when it exists in solidarity with nature, which nourishes and sustains
us - not only with regard to physical food, but also with physical well-being.
It constitutes a right which all citizens possess to live in an environment
free from contamination. This is the basis of a just and productive
society."
3. Mexico
Decision 12/91 of the Council of the National Commission for Human Rights
assigns to the Commission responsibility for dealing with complaints on
ecological matters. In this connection, the Commission has drawn up a programme
on human rights, ecology and health. In 1991 and 1992, the Commission made six
recommendations on the environment. Recommendation 110/91 of 8 November 1991,
for example, was in response to a complaint lodged by individuals that the
authorities responsible for controlling and eliminating pollution had failed to
keep the public informed. The Commission recommended that the authorities
concerned should publicize widely through the media the harmful effects of
environmental degradation on health and the specific measures which the public
should take. Recommendation 101/92 of 22 May 1992 was in response to a
complaint by the residents of the Nicolás Bravo and Guadalupe Hidalgo de
Tehuacón housing developments regarding irregularities in the operation of
enterprises in the area. The Commission recommended that an investigation
should be conducted into the standing of those enterprises with regard to the
law. The Government of Mexico has also informed the Special Rapporteur of the
establishment of the National Ecological Institute and the Office of the
Federal Advocate for Protection of the Environment under Decision 4/92 of the
Council of the National Commission for Human Rights.
4. Philippines
The Philippines Supreme Court recently affirmed the right of this and future
generations to a balanced and healthy ecology (Minors Oposas v. Secretary of
the Department of Environment and Natural Resources (DENR), 33 ILM 173
(1994)). The plaintiffs in that case, a group of minors representing their
generation as well as generations unborn, sought to have all existing timber
licences cancelled due to the advanced rate of deforestation in the Philippines
and its destructive effects on the environment, indigenous cultures and
"inter-generational equity". The Supreme Court reversed the dismissal
of the case, ruling that they not only had standing to represent future
generations, but had adequately asserted a right to a balanced and healthful
ecology based on the Constitution, Executive Order No. 192, title XIV, as well
as natural law. "Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-perpetuation
... the advancement of which may even be said to predate all Governments and
constitutions." The Court further ruled that if the State did not carry
out its "correlative duty to refrain from impairing the environment,"
the repercussions would not only be felt by this generation, but also those to
come - "generations which stand to inherit nothing but parched earth
incapable of sustaining life".
_______
Please find hereafter corrigendum to this document:
- E/CN.4/Sub.2/1994/9/Corr.1, issued on 13 September 1994
"Annex III, section A
Delete item 55. "
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