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.

Refugees, Internally Displaced Persons, Victims of Armed Conflicts and the Environment

There is an obvious relationship between human rights, the environment and mass exodus of populations. Violations of human rights as well as deterioration of the environment are the main causes of displacement of the populations either internally or beyond the frontiers. Refugees, asylum-seekers and internally displaced persons have minimum rights and are generally the least protected and the most vulnerable. Furthermore, they are often the target of attacks by armed groups and victimised by racism and xenophobia. Asylum-seekers are faced with restrictive practices which deny them access to safe territories. In some cases, they are either arbitrarily detained or are forcibly returned to countries or areas where their lives, security, dignity and liberty are threatened.

Environmental refugees and internally displaced persons currently number about 25 million although there is no specific reference to them in the 1951 International Convention Relating to the Status of Refugees. This Convention only refers to persons who flee their country of origin due to a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. This restrictive definition excludes de jure internal displacements even if resulting from the reasons enumerated by the 1951 Convention, as well as exodus across the frontiers as a result of the adverse consequences of environmental degradation including those directly threatening life, health and other fundamental human rights. These could be natural events such as drought, famine, earthquakes, desertification or human-generated disasters like ill-planned large scale projects such as dams, industrial disasters, nuclear accidents, pollution, improper handling of hazardous wastes, and armed conflicts.

Assistance has been dispensed to such groups on a specific basis and on the demand of the General Assembly, its subsidiary organs and specialised agencies, but they are still excluded from the benefits of international protection assumed in particular by the UNHCR (United Nations Commission on Human Rights).

In addition to its study on mass exodus, the Commission on Human Rights considered the issue of the internally displaced. In 1992, a Representative of the Secretary-General was appointed to gather information and study the issues related to this phenomenon.

Armed conflicts are the cause of a great deal of harm to the environment and of massive and gross violations of human rights despite the universally recognized principles of humanitarian and international law such as the UN Charter’s prohibition of the use of force and the customary international law principles of humanity and proportion which impose limits in the conduct of war.

These fundamental principles also find their legal expression in various international instruments, in particular, the 1977 Protocol I Additional to the Geneva Conventions of 12 August, 1949, relating to the Protection of Victims of International Armed Conflicts. Article 35 §3 of this Protocol stipulates as follows:

“It is prohibited to employ methods or means of warfare which are intended or may be expected to cause widespread, long term and severe damage of the natural environment.”

This general provision which reaffirms the fundamental humanitarian principle, whereby it is forbidden to inflict unnecessary harm, is devoted to the protection of the environment. Article 55 reiterates the obligation to protect the natural environment and extends that protection to the elements that may cause a “prejudice...to the health or survival of the population. Attacks against the natural environment by way of reprisals are prohibited.”

Principle 26 of the Stockholm Declaration, § 5 and 20 of the World Charter on Nature; Principle 24 of the Rio Declaration, and the Conclusions and the Final Declarations of the International Conference on the Protection of the War Victims all contain similar provisions. The General Assembly is still considering the question of the protection of the environment and its exploitation as a weapon in periods of armed conflicts. The WHO, however, has decided to request an advisory opinion from the International Court of Justice on the question: “In view of health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law, including the WHO Constitution?”

Disabled Persons

Environmental factors are frequently responsible for disability. The situation of disabled persons requires specific attention because of their total dependence vis-avis the environment. The problems posed by disabilities must not be minimised. According to WHO over 500 million individuals suffer from some form of disability. ILO estimates that 160 million of the disabled people are women and 140 million are children. A study conducted by the Special Rapporteur of the Sub-Commission has strengthened awareness of the human rights of the disabled persons and their special requirements.

Migrant Workers

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families stresses “...the situation of vulnerability in which ...they... frequently find themselves...”, as well as the need to ensure international protection of their rights which should be implemented on the basis of the principle of nondiscrimination.

Children and Young People

Children and young people are a force for the future and investment in them is vital. At the same time they need protection because of their vulnerability to theconsequences of environmental degradation. UNICEF (The United Nations Children’s Fund) describes them as being trapped in the spiral of “... poverty-populationenvironment.” Their huge potential is jeopardised by “... the mutually reinforcing problems of persistent poverty, rapid population growth and environmental degradation.”

Studies submitted to the Sub-Commission’s Working Group on Contemporary Forms of Slavery reveal that millions of children continue to be victims of various forms of slavery and of the degradation of their environment and living conditions. They suffer rape, ill-treatment, economic exploitation, sexual abuse and debt bondage. They are often forced into lives of child soldiers, street children, unwilling drug pushers, etc.

It is hoped that the Committee on the Rights of the Child established under the 1989 Convention will address these particular issues. The Convention explicitly refers to the “natural environment” even though it is with reference to the need to direct the education of the child to the development of respect for the environment. As with other human rights instruments, many of its provisions are intended to be implemented from an ecological standpoint.