IV Human Rights to a Healthy Environment
Environmental law deals with regulating environment-related activities, however, through human rights, environmental degradation and protection can also be addressed (Leib, Human Rights at 2). Linda Hajjar Leib proposes three reasons for incorporating the environment into human rights law; including the fact that human rights can help promote environmental protection by allowing individuals to defend their interests and human rights regarding environmental protection has already been incorporated into international and domestic laws around the world (Leib, Human Rights at 2). In the Stockholm Declaration, 1972, the right to a healthy environment was reiterated. The Stockholm Declaration states (in part):
Principle 1: 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.
Principle 2: The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.
1. International Law
In many countries, the right to a healthy environment has been recognized as a human right. The right to a healthy environment is referred to in legislation in more than 100 countries (Boyd, “Elements” at 203). Boyd notes that: “94 percent of UN nations (181 out of 193) recognize this right” (Boyd, “Elements” at 203).
There has been a shift in perspectives and a movement towards an individual’s right to a healthy environment. Many countries have enacted laws that involve environmental rights. Some countries have passed laws creating ways for the public to participate in the incorporation and enforcement of environmental laws (Boyd, “Elements” at 213; Schram, “Human Rights” at 144-145). As of 2015, the right to a healthy environment had been incorporated into constitutions in twelve different nations (Boyd, “Elements” at 213). Where the right to a healthy environment has been incorporated into a constitution, the provisions will usually include substantive and procedural rights in environmental legislation (Boyd, “Elements” at 213). These countries include France, Colombia, Portugal and Ecuador; Boyd notes that: “the constitutional environmental provisions themselves are so detailed that they can be characterized as including a de facto environmental bill of rights” (Boyd, “Elements” at 213). This perspective also exists in the United States; Hawaii, Illinois, Massachusetts, Montana, Pennsylvania and Rhode Island have validated environmental rights in their constitutions (Boyd, “Elements” at 209).
The Supreme Court of India stated that a “hygienic environment is an integral facet of the right to a healthy life and it would be impossible to live with human dignity without a humane and healthy environment” (Leib, Human Rights at 73). Leib notes that in Subhash Kumar the Supreme Court of India stated that the right to life “includes the right to enjoyment of pollution-free water and air for full enjoyment of life.” Leib also notes (at 74) that another Supreme Court of India case, Rural Litigation and Entitlement Kendra v Uttar Pradesh stated that “every citizen has a right to fresh air and to live in a pollution-free environment.” The Supreme Court of India (in Kendra) also ruled that the limestone quarries in the Dehra Dun area should be shut down in order to “protect and safeguard the right of the people to live in a healthy environment with minimal disturbance of ecological balance.” The right to a pollution-free environment is part of a right to life (Leib, Human Rights at 74).
Environmental provisions and duties are included in the Constitution of India. However, these provisions are not enforceable on their own because they are under the Directive Principles of State Policy (DPSP) (Leib, Human Rights at 74). Leib notes that according to the Constitution of India, under Article 37, the environmental provisions “shall not be enforceable by any court, but are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws” (Leib, Human Rights at 74). A majority of the provisions included in the DPSP are associated with social and cultural rights (Leib, Human Rights at 74). Leib notes that Articles 48A and 51A are part of the DPSP, and state that Indian citizens and the country have duties regarding environmental protection (Leib, Human Rights at 74). Leib also notes that Article 48A states that the “state shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country,” and Article 51A states that it “shall be the duty of every citizen of India … to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures” (Leib, Human Rights at 75). The Constitutional provisions of India have been referred to in countless judicial decisions and have led to the recognition along with the enforcement of the human right to a clean environment (Leib, Human Rights at 75).
Leib notes (at 74-75) that the High Court of India, in the case of L.K. Koolwal v State of Rajasthan and Others, held that every individual has a constitutional duty to protect the environment; as well, under Article 51A, individuals also have the right “to go to the Court for the enforcement of the duty cast on the State instrumentalities agencies” (Leib, Human Rights at 75).
A connection can be made between the right to life, an appropriate living environment, and the right to health; a healthy environment can be seen as one of the first steps to a healthy living standard (Leib, Human Rights at 75). The Indian judiciary is known for having a large role in protecting the environment through the human right to life (Leib, Human Rights at 75). The Supreme Court of India interpreted the constitutional right to life in broad terms and included the protection of the environment under this section (Leib, Human Rights at 75). Leib notes that the lack of clean drinking water, poor sanitation, and pollution are the main causes of both health problems of the Indian people and environmental health problems (Leib, Human Rights at 75).
B. Inter American Commission on Human Rights
While in Canada there is a lack of recognition of the enforcement of the American Convention on Human Rights, this document is important to environmental rights. The Canadian government has noted that ratification of the Convention would make a minor impact on Canadians, due to the fact that Canada also has a Charter of Rights and Freedoms, along with a legislation provincially and federally to protect human rights (Canada, Senate Canada, Standing Senate Committee on Human Rights, Enhancing Canada’s Role in the OAS: Canadian Adherence to the American Convention on Human Rights (May 2003) Chapter IV (Honourable Shirley Maheu) [Senate]). As well, in Canada, the absence of legislation regarding the implementation of international treaties limits the ability to rely on these in a court of law (Senate). There are also some Canadian governmental concerns with recognizing the American Convention on Human Rights. For example, Article 4: “protecting the right to life in general from the moment of conception” and Article 13: Freedom of Expression and Prohibition of Prior Censorship, along with other Articles, have raised concerns for Canadians and government members (Senate).
However, Canada is subject to the jurisdiction of the Inter-American Commission and this is non-binding in nature (Senate). In addition, other states in North, South and Central America have recognized the American Convention. The Inter-American Commission on Human Rights (IACHR) stated that the “realisation of the right to life, and to physical security and integrity is necessarily related to and, in some ways, dependent upon one’s physical environment” (Leib, Human Rights at 75). The IACHR also held, in the case of Sawhoyamaxa Indigenous Community v Paraguay, 2006, (at para 145) that “Paraguay failed to respect the right to life of the Sawhoyamaxa Community members since the lack of recognition and protection of their lands forced them to live on a roadside and deprived them from access to their traditional means of subsistence” (Leib, Human Rights at 75). The IACHR also noted (at para 145) that many community members died after a lack of access to nutrition and medical attention. The court held (at para 125) that “states have the duty to guarantee the creation of the conditions that may be necessary in order to prevent violations of such an inalienable right” and “states must adopt any measures that may be necessary to create an adequate statutory framework to discourage any threat to the right to life.” Leib notes the Inter-American Commission has advanced the protection and preservation of the environment (Leib, Human Rights at 76). However, the IACHR has ruled that in order for the right to a healthy environment to have been violated, the conditions must be life-threatening, and the environmental danger has to be severe and directly endanger human life; although the right to life includes environmental protection, it is limited to direct threats to life (Leib, Human Rights at 76).
Protecting nature and recognizing the rights of nature can arise through recognizing the human right to a healthy environment. In the Bolivian Constitution, 2009, Article 33 states “Everyone has a right to a healthy, protected, balanced environment.” The exercise of this right allows “individuals and communities of present and future generations, as well as other living things, to develop in a normal and permanent manner” (Joel Colón-Ríosa, “Constituent Power, the Rights of Nature, and Universal Jurisdiction” (2014) 60 McGill L.J. 127 at 149 (HeinOnline) [Colón-Ríosa, “Constituent Power”]). Bolivia’s Constitution has recognized the right to a healthy, clean environment and its importance (Arts 34, 35).
The Constitution of the Republic of Ecuador, 2008 includes many provisions which state that “individuals have the right to live in an environment that is pollution-free, healthy, and ecologically balanced. They have a corresponding obligation, along with the government, to ‘respect the Rights of Nature’, preserve a healthy environment and use natural resources sustainability” (Boyd, Rights of Nature at 172). Ecuador is another nation that has made huge steps towards environmental protection and prevention from degradation.
E. New Zealand
In 2011, the New Zealand government appointed a Constitutional Advisory Panel to gather information from the public to create a modern version of their Bill of Rights and include their views of environmental rights (Boyd, Rights of Nature at 157). The Advisory Panel recommended adding environmental rights to the Bill in 2013 and that it be added as a human right to a healthy environment; this has already gained legal recognition in some countries (Boyd, Rights of Nature at 157). Another suggestion was to implement the rights of the environment, along with obligations on the government and duties to the citizens (Boyd, Rights of Nature at 157).
As noted above, many countries around the world are recognizing the human right to a clean environment within their constitutions, jurisprudence and legislatures. Canada, however, does not recognize the right to a healthy environment (Boyd, Rights of Nature at 2). In “Elements” (at 202), Boyd notes that studies show that ninety percent of Canadians have expressed concerns regarding environmental protection and health issues connected to the environment, concerns also span to their children’s health, grandchildren’s health, and future generations. He also notes that the majority of Canadians agree that access to clean water is a basic human right; the right to live in a healthy environment should be recognized and laws protecting the environment should be much stricter (“Elements” at 203-4).
According to a study by Thomas Gunton and K.S. Calbick for the David Suzuki Foundation in 2010 (The Maple Leaf in the OECD), Canada’s environmental performance is ranked 24 out of the 25 of the wealthiest nations (at 1). Boyd notes that if all seven billion people on earth consumed resources and produced waste the same as Canadians do, three additional planets would be needed for the survival of human beings; Canada has the “seventh-largest per capita ecological footprint” in the world (“Elements” at 205). However, Canadians seem involved in environmental change. Boyd notes that the David Suzuki Foundation has started an environmental rights movement and thirty municipalities across Canadian provinces have expressed interest in the Blue Dot campaigns, which are working towards passing laws that recognize the human right to a healthy environment (Boyd, “Elements” at 202).
The human right to a healthy environment has been discussed in numerous articles. David Boyd’s article: “Elements of an Effective Environmental Bill of Rights” sets out factors describing why Canada needs to implement environmental rights, including the reason that most Canadians value:
- environmental protection;
- preserving Canada’s landscapes, natural wealth, and improving Canada’s environmental performance;
- protecting the health of Canadians, future generations and avoiding environmental consequences, such as contaminated food, water and air pollution; and
- believing environmental rights are at the core of Indigenous law communities, laws; and
- these values would move Canada closer to reconciliation with Aboriginal people (Boyd, “Elements” at 203-4).
Boyd also notes:
The recognition of a human right is accompanied by a set of corresponding obligations—falling primarily upon the shoulders of government—to respect, protect, and fulfil the right. Respecting the right means that governments cannot take actions that violate the right, such as dumping toxic waste from military operations into a river or lake (Boyd, “Elements” at 226-227).
It is not enough just to value the environment; steps must be taken to ensure environmental rights are protected. In 2014, the New Democrat Party introduced Private Members’ Bill C-634 (2nd Session, 41st Parliament, 2014), the Canadian Environmental Bill of Rights, recognizing that Canadians have a right to live in a healthy environment, and this right included procedural guarantees and provisions requiring measures to be taken to protect this right.
The proposed Canadian Environmental Bill of Rights stated:
9(2) The Government of Canada has an obligation, within its jurisdiction, to protect the right of every resident of Canada to a healthy and ecologically balanced environment.
(3) The Government of Canada is the trustee of Canada’s environment within its jurisdiction and has the obligation to preserve it in accordance with the public trust for future generations.
In 2015, Private Members’ Bill C-202 was re-introduced by the New Democrats and received first reading. It did not, however, proceeded any further. In 2017, David Suzuki lobbied for progress in this area, noting that more than 110 countries have constitutions that include the right to a healthy environment (David Suzuki “Why Canada needs an Environmental Bill of Rights” (April 21, 2017) Canadian Geographic).
The Province of Ontario also passed an Environmental Bill of Rights in 1993 (SO 1993, c 28). This law gives Ontarians the right to participate in environmental decision-making.