National Level

Over 60 Constitutions contain specific provisions relating to the protection of the environment and natural resources. Some of them recognize explicitly the right to a satisfactory environment even if the adjectives used differ from one Constitution to another. This right is generally presented as entailing corresponding duties towards the State and its institutions and obligations for individuals and organs of society. A few recognize corresponding rights for the individuals and groups.

An increasing number of States have developed the framework of laws and regulations needed to ensure implementation of this right. Some of them have spelt out the substantive aspect of that right and the related procedural rights, such as, the right to health, to life, to participation, to association, to information, and to legal action or recourse. Some countries have provided for the
punishment of offences against the environment and/or have affirmed the principle of compensation for the victims, as well as reparation for damage. In some cases there is also a reference to preventive aspects. A number of cases in national courts directly affirm and enforce the constitutional right to the environment.

For example, the Supreme Court of India cited the fundamental duty of all citizens under Article 51 (A) of the Constitution to protect the environment as a basis for its decision to enjoin illegal mining operations. The Court noted that the obligation to maintain an ecological balance extended as much to the State as to individuals. In another case, the same Court gave express recognition to the right to environment, stating that: “...[the] right to life is a fundamental right [which] includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life.”

Colombian Courts have also affirmed and enforced the constitutional right to environment. The Court of the district of Antioquia acknowledged the “grave consequences” to the health and life of the indigenous peoples as a result of living in deforested and polluted areas. The Court stated that “...the devastation of their forests alters their relation with the environment and endangers
their lives and culture and ethical integrity ...” It ordered the defenders to pay for an environmental and cultural impact study to be carried out by the appropriate authorities. In another case, the First Superior Court of Tulua-Valle ordered the suspension of an asphalt plan
operation, stating that “... it is evident that there is a threat to a fundamental right recognized in the national constitution ... which could be violated, causing irreparable harm to the community.” The Constitutional Court of Colombia upheld the decision of the First Superior Court.

The Supreme Court of Costa Rica ordered that a dump threatening the rights to life and a healthy environment be closed immediately, asserting that “...life is only possible in solidarity with nature ...” The Philippines Supreme Court recently affirmed the right of present and future
generations to a balanced and healthy environment and ruled that the plaintiffs, who were children, had standing to represent future generations.

Review of Further Developments

Although the relationship between human rights, environment and development is widely recognized, it still requires discussion particularly in relation to the scope and content of an emerging right to the conservation of the environment. The expressions qualifying the word “environment” are diverse and many adjectives have been used to describe its characteristics; decent, secure, pleasant, liveable, desirable, natural, pure, clean, safe, satisfactory, healthy, human, unpolluted, ecologically balanced and so on. However, these various qualifications reveal the same underlying aspirations reflected also in the developing practice and legislation at national, regional and international levels.

ILLICIT Dumping of Toxic and Dangerous Substances and Waste

Transboundary movement of hazardous wastes has engaged the attention of developing countries, particularly African States which consider that they are victims of transnational corporations who have developed a traffic of illicit dumping of toxic wastes from the North to the South. The Organization of the African Unity considered that such dumping was “... a crime against Africa.” The General Assembly condemned the dumping of nuclear and industrial wastes in Africa.

Following the adoption of the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal which was the result of a compromise between the advocates of a complete ban on transboundary movements of wastes and those who
wished to organize the legal framework for such transfer, the African Countries adopted the Bamako Convention on the Banning of the Import into Africa and the Control of the Transboundary Movement of Hazardous Wastes within Africa on 29 January 1991. However, so far, the latter Convention has received hardly any ratifications.

Agenda 21 contains objectives aimed at preventing the illegal transboundary movement of hazardous wastes by, inter alia, reinforcing national capacities to detect and halt illegal transboundary movements and by assisting developing countries in obtaining appropriate information.

The Sub-Commission and the Commission of Human Rights have also addressed this issue and passed several resolutions recognising that the illicit dumping of toxic substances and wastes constitutes a serious threat to the human rights to life and health, and stressing the vulnerability and concern of developing countries. The Commission took a further step at its 1995 session. It noted with grave concern that the increasing rate of such dumping in developing countries continued adversely to affect the human rights to health and life and decided to appoint a Special Rapporteur to investigate the effects of dumping in Africa and other developing countries and make recommendations on measures to eradicate such traffic. The nomination of the Special Rapporteur will be effective after its approval by ECOSOC.