1

1. Relations between Human Rights and Environment

Environment plays an important role in healthy living and the existence of life
on planet earth. Earth is a home for different living species.1 All living things depend
on the environment in which human beings are living. Human beings may not have
access to even the minimum standards of human dignity, if there is no a healthy
environment. The fundamental rights of Human needs are a safe, clean, healthy and
sustainable environment that is integral to the full enjoyment of a wide range of
human rights, including the rights to life, health, food, water and sanitation.2
The relationship between human rights and the environment has significantly
increased in civilized nations. In the field of International and national laws, judicial
decisions, and academic studies on the relationship between human rights and the
environment are growing rapidly. The relationship between human rights and
environmental problems has become an issue for the International community.
The link between these two sectors is that a proper substantial environment is
a prerequisite for living a life of dignity and worth. A proper substantial environment
has to do with protection against noise nuisance, climate change, ozone depletion,
rising global temperature, deforestation, loss of biodiversity, improper waste
management, nuclear waste, plastic pollution, reliance fossil fuel, air pollution, and
pollution of surface waters and the dumping of toxic substances.3
This is according to the United Nations’ Human Rights Council, whsoe
members have voted overwhelmingly in favor of a resolution that having a clean,
healthy and sustainable environment is a human right 22nd July 2022.4 The decision to
recognize it as a human right to have access to a clean, healthy and sustainable
environment is historic decision.

1.1 Human Rights Relevant to the Environment

All over the world, people are experiencing the effects of ecosystem decline,
from the lack of environmental preservation as well as the Environmental degradation

1
Our Environment - Components and Importance Of Environment, https://byjus.com/biology/our-
environment.
2
About Human Rights and Environment, https://www.ohchr.org/en/special-procedures/sr-environment/
about-human-rights-and-environment
3
Human Rights and the Environment Icelandic Human Rights Centre, https://www.humanrights.is/en/
human- rights-education-project/human-rights-concepts-ideas-and-fora/human-rights-in-relation-to-
other-topics/human-rights-and-the-environment
4
https://news.un.org/en/story/2022/07/1123482
 2

has an adverse impact on the quality of human life, and more specifically on the full
enjoyment of human rights. The victims of environmental degradation typically
belong to more vulnerable sectors of society. Children, racial and ethnic minorities
and the poor regularly carry a disproportionate burden of such abuse.5
Human rights and the environment are intertwined. Human rights cannot be
enjoyed without a safe, clean and healthy environment and sustainable environmental
governance cannot exist without the establishment of and respect for human rights.
This relationship is increasingly recognized, as the right to a healthy environment
is enshrined in over 100 constitutions.6 The Stockholm Declaration was the first
international instrument to expressly recognize the relationship between individual
human rights and the quality of the environment. Principle 1 of the Stockholm
Declaration states, “Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of quality that permits a life of dignity and well-
being and bears a solemn responsibility to protect and improve the environment for
present and future generations”. It does not proclaim a fundamental human right to a
healthy environment, but implies that basic environmental health is necessary for the
free enjoyment and exercise of recognized human rights. Accordingly, environmental
degradation may interfere with fundamental human rights to such an extent that those
rights are violated.7

1.2 Environmental Rights

Environmental right means any proclamation of a human right to
environmental conditions of a specified quality. Human rights and the environment
are intertwined; human rights cannot be enjoyed without a safe, clean and healthy
environment; and sustainable environmental governance cannot exist without the
establishment of and respect for human rights. This relationship is increasingly
recognized, as the right to a healthy environment is enshrined in over 100
constitutions. There are several established human rights related to the environment.

5
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 302
6
United Nations Environmental Programme, Environmental Rights and Governance , Human Rights
and the Environment, (9 Dec. 2020), https://www.unep.org/explore-topics/environmental-rights-and-
governance
7
Sueli Giorgetta, The Right to a Healthy Environment, Human Rights and Sustainable
Development, International Environmental Agreements: Politics, Law and Economics (Netherlands:
Kluwer Academic Publishers,2002), 176
 3

Environmental rights are composed of substantive rights (fundamental rights) and

procedural rights (tools used to achieve substantial rights).8 The relationship of human
rights and the environment has developed through the adoption and interpretation of
many different national constitutions and laws, human rights treaties, and multilateral
environmental agreements. 9 There are several established human rights related to the
environment.10 These Human rights can further be divided into substantive and
procedural rights.11
1.2.1 Environmental Substantive Human Right
Fundamental environmental rights are those that recognize a right to some
degree of environmental quality, such as a right to an ‘adequate,’ ‘clean,’ ‘healthy,’
‘productive,’ ‘harmonious,’ or ‘sustainable’ environment. Moreover, environmental
rights have been recognized as an aspect of non-environmental substantive rights,
such as the right to life and dignity. Global Judicial Handbook on Environmental
Constitutionalism (3rd Edition) 21 There is good reason that substantive
environmental rights are common. As a general matter, substantive rights can be
effective because they are often viewed as being self-executing and enforceable, are
less susceptible to political change, and more likely to endure. Substantive
environmental rights, therefore, afford the most durable and enforceable means for
environmental protection.12 There are many substantive rights that need to become a
healthy environment. From a human rights point of view, the following substantive
rights can be affected by environmental degradation.

1.2.1.1 The Right to Life

The Right to Life is the most important and the doctrinal foundation of all
human rights law. The primacy of the right to life is demonstrated by its inclusion in
numerous human rights documents, from the Universal Declaration of Human Rights
to various regional instruments. "The right to life is one of the rights universally

8
What Are Environmental Right? https://www.unep.org/explore-topics/environmental-rights-and-
governance/what-we-do/advancing-environmental-rights/what
9
Lavanya Rajamani and Jacqueline Peel, The Oxford Handbook of International Environmental Law,
2nd edn, Croydon, UK , 2021,784-785
10
United Nations Environmental Programme, Environmental Rights and Governance , Human Rights
and the Environment, (9 Dec. 2020), https://www.unep.org/explore-topics/environmental-rights-and-
governance, https://www.unep.org/explore-topics/environmental-rights-and-governance
11
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 302
12
James R. May & Erin Daly, “Global Judicial Handbook on Environmental Constitutionalism”,
(United Nation Environment Programme, 3rd Edition, 2019), 20-21
 4

recognized as forming a part of jus cogens.13 In Shehla Zia v WAPDA14 a landmark

case on the right to life, and to human dignity, the issue before the court was whether
a grid station should be constructed near a residential area as the electro-magnetic
field created could pose a serious health hazard. The court observed that in a situation
of uncertainty, authorities should observe the rules of prudence and precaution.
Despite clarifying that it was invoking Principle 15 of the Rio Declaration for its
persuasive value (as Pakistan had not ratified the Rio Declaration), the court seemed
to implement the precautionary principle. The court held that the company could not
wait for conclusive findings on the effect of electro-magnetic fields on human life
before taking necessary measures.15

1.2.1.2 The Right to Respect Private and Family Life and Home
The Right to Respect for Private and Family Life and Home has been
successfully invoked against severe pollution within the European Human Rights
System.16 The European Convention on Human Rights stated, “Everyone has the right
to respect for his private and family life, his home and his correspondence."17 In the
case of Taskin and others v. Turkey, The case concerned the granting of permits to
operate a gold mine in Ovacık, in the district of Bergama (Izmir). The applicants lived
in Bergama and the surrounding villages. The applicants alleged that, as a result of the
Ovacık gold mine’s development and operations, they had suffered and continued to
suffer the effects of environmental damage; specifically, these included the movement
of people and noise pollution caused by the use of machinery and explosives.18 The
applicants alleged that both the granting by the national authorities of a permit to
operate a goldmine using the cyanidation process and the related decision-making
process had infringed their rights under Articles 2 and 8 of the Convention. The Court
considered that the authorities had deprived the procedural safeguards protecting the
applicants of all useful effect. Turkey had thus failed to discharge its obligation to
guarantee the applicants’ right to respect for their private and family life. The Court

13
H. Lytton Christopher, ‘ Environmental human rights: Emerging trends in international law and
ecocide’ , Environmental Claims Journal, 13/1(2009), 75, https://doi.org/10.1080/10406020009355152
14
Shehla Zia v WAPDA, PLD 1994(SC693)
15
Lavanya Rajamani and Jacqueline Peel, The Oxford Handbook of International Environmental Law,
(2nd edn, Croydon, UK, 2021), 1081-1082
16
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 302
17
Article 8 of the European Convention on Human Rights, 1953
18
Tasking and Others v. Turkey (ECHR,10 Nov 2004)
 5

accordingly concluded unanimously that there had been a violation of Article 8 of the
European Convention on Human Rights (right to respect for private and family life).19

1.2.1.3 The Right to Use and Enjoy Property

The present generation has a right to use and enjoy the resources of the Earth
but is under an obligation to take into account the long-term impact of its activities
and to sustain the resource base and the global environment for the benefit of future
generations of humankind. In this context, “benefit” is given its broadest meaning as
including, inter alia, economic, environmental, social, and intrinsic gain.20
In the Trial Smelter case, the Tribunal finds that under the principles of
international law, as well as the law of the United States, no state has the right to use
or permit the use of its territory in such a manner as to cause injury by fumes in or to
the territory of another or the properties or persons therein, the case is of serious
consequence and the injury is established by clear and convincing evidence.21 The
arbitration tribunal concluded that, under the principles of international law, no state
has the right to use or permit the use of its territory in a manner as to cause injury by
fumes to the territory of another state when the polluting acts are of serious
consequence and the injury is established by clear and convincing evidence.22

1.2.1.4 The Right to Decent Environment

The Right to a Decent Environment is expressly recognized by two regional
human rights treaties, namely the African (Banjul) Charter on Human and Peoples’
Rights and the San Salvador Protocol to the American Convention on Human Rights.

1.2.1.5 The Right to Self-Determination

The 1945 UN Charter in Article 2, requires parties to ‘settle their international
disputes by peaceful means’ and to ‘refrain in their international relations from the
threat or use of force’. A breach of these obligations renders the belligerent subject to
sanctions imposed by the doctrine of state responsibility, and to criminal sanctions.
Non-international conflict over natural resources is subject to a more limited
international law regime that addresses jus ad bellum only in light of the right of self-
19
European Court of Human Right, http://www.echr.coe.int
20
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 40
21
Judicial Decision Involving Questions of International Law, American Journal of International Law,
35/4 (October 1941), 684-736, https://doi.org/ 10.2307/2192577
22
United States Vs Canada, 1941, U.N. Rep. Int'l Arb. Awards 1905 (1949)
 6

determination; whether a sovereign state’s violation of this right could give rise to
duties of state responsibility is untested.23

1.2.1.6 The Right to Cultural Expression and Right to Religion

The survival of indigenous peoples depends upon the integrity of their
environment. One way in which environmental degradation violates indigenous rights
is through direct and indirect harm to the people and the resources that sustain them.
The destruction of the environment not only affects indigenous peoples in their right
to life, health and well being but also in their right to self-determination and right to
24
cultural expression and right to religion. 1992, Rio Declaration, Principle 22 stated
“Indigenous people and their communities and other local communities have a vital
role in environmental management and development because of their knowledge and
traditional practices. States should recognize and duly support their identity, culture
and interests and enable their effective participation in the achievement of sustainable
development.”25

1.2.2 Procedural Environmental Human Rights

An emanation of certain principles contained in the 1972 Stockholm
Declaration on Human Environment and the 1992 Rio Declaration on Development
and Environment, such as Principle 10 of the Rio Declaration, which grants a
procedural right to a clean environment. It is generally thought that the procedural
environmental right is a more effective and flexible tool in achieving environmental
justice than a substantive right, which frequently does not grant any procedural rights
to information, participation or judicial justice, and thus is to a large extent only a
policy statement.26
The primary points of intersection between human rights law and
environmental law are concerning the ‘human right to a healthy environment,’
procedural rights relating to access to environmental information, public participation,

23
Lavanya Rajamani and Jacqueline Peel, The Oxford Handbook of International Environmental Law,
(2nd edn, Croydon, UK , 2021), 868
24
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 305
25
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 35
26
Malgosia Fitzmaurice, Contemporary Issues in International Environmental Law, (Cheltenham, UK:
Edward Elgar, 2009), 173
 7

and remedy, and the jurisprudence of regional and national courts that recognizes the
human rights impacts of environmental harms.
Procedural rights relating to the environment, as discussed earlier, are being
increasingly recognized and respected. The jurisprudence of regional and national
human rights bodies on environmental matters has increased exponentially, and as
these bodies are exposed to environmental principles and sensibilities, they are
tapping into a rich vein of cross-fertilization. Indeed, one of the most path-breaking
decisions in international environmental law to emerge in recent times did so from a
regional human rights body.27
Procedural environmental rights consist of three ‘pillars,’ allowing for rights
to information, participation, and access to justice. These pillars work in tandem to
help ensure better decisionmaking in environmental matters. First, informational
rights include access to timely and reliable information from governmental agencies
charged with overseeing activities that affect the environment. Second, participatory
rights enable stakeholders to shape governmental decisions in environmental matters,
including permission to submit comments, ask questions, and attend and participate in
public meetings. Third, adjudicatory rights allow stakeholders to seek civil mediation
and enforce court orders in the face of recalcitrant or improvident government action
in environmental matters. Collectively, such process rights can raise awareness,
provide opportunities to participate, foster empowerment, strengthen local
communities, facilitate government accountability, increase public acceptance of
decisions, and contribute to the legitimacy of governmental action. Procedural rights
can also promote discourse and democratization through concomitant rights to
assemble, speak, and participate in governance.28

1.2.2.1 The Right to Information

The right to information and participation in decision making applies to a large
number of environmental issues.29 The ability of individuals and communities to
access environmental information is the very essence of emancipatory transparency,
and is vital for public-facing compliance centred transparency. Absent reliable access

27
Lavanya Rajamani and Jacqueline Peel, The Oxford Handbook of International Environmental Law,
(2nd edn, Croydon, UK , 2021), 26
28
James R. May & Erin Daly, “Global Judicial Handbook on Environmental Constitutionalism”,
(United Nation Environment Programme, 3rd Edition, 2019), 23
29
Elli Louka, International Environmental Law, Fairness, Effectiveness, and World Order, (1 st edn,
New York, US: Cambridge University Press, 2006), 114
 8

to a source of good-quality information, individuals and communities cannot

effectively mobilize to defend their environments, and cannot hold states and other
actors to account for their actions. Increasingly, therefore, international environmental
law moves beyond inter parties information rules (‘the original reporting, consultation
and notification obligations’) towards a ‘second generation’ of rules, which serve,
inter alia, ‘to increase the public availability of information by enhancing access.’30

1.2.2.2 The Right to Participation

Public participation is at the heart of democracy and the environmental justice
movement. Public participation will equalize access to and balance interests within
legislative governance models will enhance previously underrepresented voices
within deliberative governance models and will improve the accuracy, efficiency, and
legitimacy of decisions reached the agency level. Social activists look to public
participation to amplify community voice; empower minority, low-income, or other
excluded communities; and ensure more just results. Some theorists have argued that
too much citizen participation in government may be dangerous or simply ineffective
but public participation remains a central tent of the modern way of the world.31
One of the first instruments that refers to a right to participation is the United
Nations Economic Commission for Europe Convention on Environmental Impact
Assessment. The convention explicitly states that the assessment of proposed
activities likely to have an environmental impact should take place with the
participation of the public. The Aarhus Convention establishes three types of
participation:
(a) public participation in decisions on specific activities, here called
specific public participation; 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.
(b) public participation concerning plans, programs, and policies relating
to the environment, here called general public participation;

30
Lavanya Rajamani and Jacqueline Peel, The Oxford Handbook of International Environmental Law,
(2nd edn, Croydon, UK , 2021), 915.
31
Alma L. Lowry, “Achieving Justice through Public Participation: Measuring the Effectiveness of
New York’s Enhanced Public Participation Plan for Environmental Justice Communities”, Ph.D
Dissertation, Syracuse University, 2013, http:// surface.syr.edu/socsci_etd/180, 11.
 9

(c) public participation in the preparation of executive regulations and of

legally binding instruments, here called normative public
participation.32

1.2.2.3 The Right to Equal Protection and to be Free from Discrimination

The establishment and implementation of appropriate levels of environmental
protection must always comply with obligations of non-discrimination, and there is a
strong presumption against retrogressive measures in relation to the progressive
realization of economic, social, and cultural rights.33
The obligations of states under human rights law to prohibit discrimination
and to ensure equal and effective protection against discrimination apply to the equal
enjoyment of human rights relating to the environment. States therefore have
obligations, among others, to protect against environmental harm that results from or
contributes to discrimination, to provide for equal access to environmental benefits
and to ensure that their actions relating to the environment do not themselves
discriminate. In addition, states must take additional steps to protect the rights of
those who are particularly vulnerable to or at risk from environmental harm, including
environmental human rights defenders and Indigenous peoples.34

1.2.2.4 The Right to Judicial Remedy

The Universal Declaration of Human Rights states: “Everyone has the right to
an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law.”35 This protection is
repeated in many human rights treaties, including the International Covenant on Civil
and Political Rights. It states, “Each State Party to the present Covenant undertakes to
ensure that any person claiming such a remedy shall have his right thereto determined
by competent judicial, administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the State, and to develop the
possibilities of judicial remedy”.36 International environmental instruments support an

32
Elli Louka, International Environmental Law, Fairness, Effectiveness, and World Order, (1 st edn,
New York, US: Cambridge University Press, 2006), 133
33
Lavanya Rajamani and Jacqueline Peel, The Oxford Handbook of International Environmental Law,
(2nd edn, Croydon, UK , 2021), 796
34
Lavanya Rajamani and Jacqueline Peel, The Oxford Handbook of International Environmental Law,
(2nd edn, Croydon, UK , 2021), 797
35
Article 8 of the Universal Declaration of Human Rights, 1948
36
Article 2 (3) of the International Covenant on Civil and Political Rights, 1966
 10

obligation to provide for effective remedies. The Rio Declaration states, “Effective
access to judicial and administrative proceedings, including redress and remedy, shall
be provided.”37 At the national level, many but not all States have adopted legal
procedures that provide for effective remedies for violations. Good practices include
specialized environmental courts, relaxed requirements for standing for plaintiffs in
environmental cases, and national human rights commissions that hear environmental
claims.38

37
Principle 10 of the Rio Declaration on Environment and Development, 1992
38
Know Your Right, Right to Effective Remedies, https://environment-rights.org/rights/right-to-
effective-remedies/
 11

2. International Legal Framework

International concern for the protection, preservation and improvement of

environment became pronounced only in the second-half of the last century. In the
context of today's interdependent world, with the economic globalization as the
emerging international norm, any act or omission on the part of one nation adversely
affecting its national environment may have far reaching adverse consequences to the
global environment. This fear has prompted the members of the family of nations to
shed their attitude of indifference to the global environmental concerns and to become
aware of the dangers of further environmental neglect. The result was the initiation of
the international efforts to find international legislative and administrative strategies
to address global environmental challenges.39

2.1. Human Rights Instruments

On 10 December 1948, the General Assembly of the United Nations adopted
and proclaimed the Universal Declaration of Human Rights. The 30 articles of the
1948 Universal Declaration proclaim in clear and simple terms the fundamental rights
that equally apply to all human beings. Through its adoption, individuals became
subjects of International Law in their own right. Within the United Nations, human
rights activities are pursued by bodies under the authority of the UN Charter or
established by human rights treaties. The 1948 Universal Declaration was followed in
1966 by the adoption of two human rights covenants. The first is the International
Covenant on Civil and Political Rights, 1966, which details the basic civil and
political rights of individuals and groups. The second covenant is the International
Covenant on Economic, Social and Cultural Rights, which describes the basic
economic, social, and cultural rights of individuals and groups. Other important
United Nations agreements on human rights are the UN Convention against Genocide
(1948), the Convention against Torture (1975) and the Convention on Elimination of
all Forms of Discrimination against Women (1979). The UN Convention on the
Rights of the Child, adopted on 20 November 1989, is the most widely ratified human
rights treaty.40

39
Aruna Venkat, Environmental Law and Policy, (New Delhi, India: Asoke K. Ghosh, 2011), 12
40
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 303
 12

The 1994 Draft Declaration is the first international instrument that

comprehensively addresses the linkage between human rights and the environment. It
was included in the Final Report on Human Rights and the Environment to the Sub-
Commission on Prevention of Discrimination and Protection of Minorities, which was
issued by Special Rapporteur Madam Ksentini in the same year. The Draft
Declaration demonstrates that accepted environmental and human rights principles
embody the right of everyone to a secure, healthy and ecologically sound
environment. On the question of whether a specific environmental right exists, the
Report on Human Rights and the Environment further supports the intermediary
position. The Report concludes that environmental rights are contained in and can be
derived from existing human rights instruments of both a substantive and procedural
nature. 41
The treaties does not expressly provide for a right to healthy environment or
quality of life. However, the fundamental rights from a integral part of the general
principles of community law. In safeguarding these rights the European Court of
Justice draws inspiration from constitutional traditions common to the member States
as well as International Treaties on which member states have collaborated or have
signed. The key treaty for these purposes is the Euperon Convention for the protection
of Human Rights and Fundamental Freedom. The obligation of the Euperon Union to
respect human rights is enshrined in the Maastricht Treaty that provides “the Union
shall respect fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms signed in Rome on 4
November 1950 and as they result from the constitutional traditions common to the
Member States, as general principles of Community law.”42

2.2 Human Rights in Environmental Law Instruments

Environmental law instruments that link the environment and human rights
began to appear as early as 1972, in the Stockholm Declaration on Human
Environment, which states 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

41
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 303-304
42
Art F, Title 1 of the Treaty on European Union, 1992
 13

the environment for present and future generations.”43 This declaration may be regard
as doing for the protection of the environment of the earth what the UDHR
accomplished for the protection of fundamental freedom and human Rights.44
Rio Declaration on Environment and Development provides that “Human
beings are at the centre of concerns for sustainable development. They are entitled to
a healthy and productive life in harmony with nature.”45
With regards to procedural rights, the 1982 World Charter for Nature was one
of the first declarations that recognized the right of individuals to participate in
decision making and to have access to means of redress when their environment had
suffered damage or degradation. The Aarhus Convention is created to empower the
role of citizens and civil society organizations in environmental matters and is
founded on the principles of participative democracy. It establishes a number of rights
to the individuals and civil society organizations with regard to the environment. The
Parties to the Convention are required to make the necessary provisions so that public
authorities, at a national, regional or local level, will contribute to these rights to
become effective.46
The Aarhus Convention links environmental rights and human rights. The
subject of the Convention goes to the heart of the relationship between people and
governments. The Convention is not only an environmental agreement but also a
Convention about government accountability, transparency and responsiveness. It
grants the public rights and imposes on Parties and public authorities’ obligations
regarding access to information and public participation and access to justice.
Moreover, the Aarhus Convention is also forging a new process for public
participation in the negotiation and implementation of international agreements. 47
The Aarhus Convention provides for “The right of the citizens to receive
environmental information that is held by public authorities. The right of the citizens
to participate in preparing plans, programmes, policies, and legislation that may affect
the environment. The right of the citizens to have access to review procedures when their
rights with respect to access to information or public participation have been violated."48

43
Principle 1 of the Stockholm Declaration on Human Environment,1972
44
Aruna Venkat, Environmental Law and Policy, (New Delhi, India: Asoke K. Ghosh, 2011), 14
45
Principle 1 of the Rio Declaration on Environment and Development, 1992
46
https://aarhus.osce.org/about/aarhus-convention
47
https://unece.org/environment-policy/public-participation/aarhus-convention/introduction
48
Article 4,6,7 of the United Nations Economic Commission for Europe Convention on Access to
Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters
 14

2.3 Application of Human Rights Law to Environmental Issues

Much of the development of environmental human rights law has occurred
through the application by human rights bodies of existing rights, such as rights to life
and health, to environmental issues. Although the development has occurred in many
different forums, construing different human rights sources, it has resulted in a
coherent set of norms. In addition, international instruments set out Indigenous and
tribal rights, many of which directly relate to the environment.49
Indigenous and Tribal Rights relating to the environment are also recognized
as the environmental human right. The two most important sources of Indigenous and
tribal rights relating to the environment are International Labour Organization
Convention (No 169) concerning Indigenous and Tribal Peoples in Independent
Countries, and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).
The ILO Convention has twenty-four parties, most of which are in Latin America.
While not legally binding in itself, UNDRIP has been generally accepted by states as
setting benchmark standards in relation to Indigenous rights, and has influenced
human rights bodies in their application of other treaties to Indigenous and tribal
peoples. Both ILO Convention No.169 and UNDRIP provide that states must
recognize and protect the rights of Indigenous peoples to the lands, territories, and
resources that they have traditionally owned, occupied, or used, including those to
which they have had access for their subsistence and traditional activities.
ILO Convention No 169 requires states to safeguard the rights of the peoples
concerned to the natural resources pertaining to their lands, including their right to
participate in the use, management, and conservation of these resources. The ILO
Convention provides that states must ensure that the peoples concerned shall,
wherever possible, participate in the benefits of exploration or exploitation of mineral
or sub-surface resources pertaining to their lands and shall receive fair compensation
for any damages, which they may sustain as a result of such activities. More
generally, UNDRIP indicates that states must provide for just and fair redress for
harm resulting from any activities affecting their lands, territories, or resources,
particularly in connection with the development, utilization, or exploitation of
mineral, water, or other resources, and ‘appropriate measures shall be taken to
mitigate adverse environmental, economic, social, cultural or spiritual impact’. They

49
Lavanya Rajamani and Jacqueline Peel, The Oxford Handbook of International Environmental Law,
(2nd edn, Croydon, UK , 2021), 789
 15

have the right to restitution or, if this is not possible, compensation for their lands,
territories, and resources that have been taken, used, or damaged without their
consent.50

50
Lavanya Rajamani and Jacqueline Peel, The Oxford Handbook of International Environmental Law,
(2nd edn, Croydon, UK , 2021), 790-791
 16

3. National Implementation
National environmental law applies within a state and regulates the relations
of citizens among each other and with the executive within the state. International law
can find its application in national law when a state takes measures to implement its
international obligations through enactment and enforcement of national legislation.
National environmental law includes rules at the national level that protect the
environment. These consist of the legislation, standards, regulations, institutions and
administrations adopted to control activities damaging to the environment within a
state. This would include inter alia framework environmental legislation, sectoral
legislation and incidental legislation, and regulations, depending on the culture of a
given country.51

3.1 National Legislation

Agenda 21 underlines the importance of implementing international treaties
through the enactment and enforcement of laws and regulations at the regional,
national, state/provincial or local/municipal level because these laws and regulations
are essential for the implementation of most international agreements in the field of
environment and development, in fact, treaties often include obligations to report on
legislative measures.52 The executive organ of the State Government that is
responsible for the formulation and determination of environmental policies and their
transformation into environmental laws. More importantly, it is the executive that is
responsible for the implementation of these laws in actual practice. For an effective
administration of environmental laws in the country, the role of the executive, therefore,
becomes vital and crucial, for, if the executive does not take its responsibilities
seriously, all the efforts of "legislative activism" would be brought to naught.53
There are several types of environmental laws and national legislative
approaches to environmental management. These include, inter alia, the following:
(a) Constitutions
(b) Sectoral laws
(c) Framework environmental laws
(d) Comprehensive codification of environmental laws
51 51
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 15
52
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 20
53
Aruna Venkat, Environmental Law and Policy, (New Delhi, India: Asoke K. Ghosh, 2011), 143
 17

(e) Penal codes

(f) Implementation of international environmental legal instruments 54
A survey of existing agreements has indicated that many countries have failed
to enact appropriate national legislation. The adoption of a Multilateral Environmental
Agreement (MEA) is just the beginning of the process of implementation. Application
at the national level by domesticating MEAs may be through a “monist” or “dualist”
approach.55
3.2 Environmental Human Rights in Term of Constitution
The vast number of national constitutions holding provisions on substantive as
well as procedural environmental rights adds further impetus to the use of rights to
provide for environmental protections. As for the substantive norms, the rights in the
national constitutions have the potential to influence debates on the status of a
substantive environmental norm under international law. Here it is worth recalling
Taşkin v. Turkey, where the plaintiff relied on the right to a healthy environment in
the Turkish Constitution before the court, which found this to constitute a civil right
within the meaning of the ECHR. National constitutional environmental rights are
strong indicators of national opinio juris and represent the highest level of national
law operating as a lex suprema. In addition, many of the constitutions changed
throughout the last twenty years have been amended to specifically accommodate
these rights.56
Constitution of the Republic of Turkey states, “Everyone has the right to live
in a healthy, balanced environment. It is the duty of the state and citizens to improve
the natural environment, and to prevent environmental pollution.”57
Constitution of the Republic of the Union of Myanmar, 2008 The 2008
Myanmar Constitution provides several important references to environmental
conservation and sustainable development. Section 390 states, “Every citizen has the
duty to assist the Union in carrying out the following matters”. (a) Preservation and

54
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 15
55
United Nations Environmental Programme, Training Manual on International Environmental Law,
n.d., 20
56
Donald K. Anton and Dinah L. Shelton ,Problems in Environmental Protection and Human Rights: A
Human Right to the Environment , The Australian National University, (June 26, 2011), ANU College
of Law Research Paper No. 11-17, https://ssrn.com/abstract=1872937 or http://dx.doi.org/10.2139/ssrn.1872937
57
Article 56 of the Constitution of the Republic of Turkey, 1982
 18

safeguarding of cultural heritage, (b) Environmental conservation, (c) Striving for the
development of human resources, (d) Protection and preservation of public property.58
In Human Rights Case (Environment Pollution In Balochistan),Case No:
31-K/92(Q) I, a news item entitled "N-Waste to be dumped in Balochistan" was
published in "Dawn", a daily newspaper in its issue dated 3 July 1992. In the report,
concern was expressed that certain businessmen were making attempts to purchase
coastal areas of Balochistan and convert it into dumping grounds for waste material.
The Supreme Court having taken note of the news item issued an Order requiring
Chief Secretary of Balochistan to provide the Court with full information on the
allocation or the receipt of applications for allocation, of coastal land in Balochistan
or any area within the territorial waters of Pakistan in accordance with the
Constitution of the Islamic Republic of Pakistan (1973)59. The reports revealed that
land had been allotted in addition to the Pakistan Navy and Maritime Agency for
defence purposes, for purposes such as ship breaking and agriculture. The Supreme
Court held that he Government functionaries, particularly the Authorities which are
charged with the duty to allot the land in coastal areas should insert a condition in the
allotment letter/license/lease that the allotee or tenant shall not use the land for
dumping, treating, burying or destroying by any device, waste of any nature including
industrial or nuclear waste in any form. The Balochistan Development Authority
should also obtain similar undertaking from all those to whom allotments have been
made for ship breaking, agriculture, or any other purpose.60

58
Section 390 0f the Constitution of the Republic of the Union of Myanmar, 2008
59
Articles 184 (3) and (9) of the Constitution of the Islamic Republic of Pakistan (1973)
60
United Nations Environmental Program, Compendium Of Summaries Of Judicial Decisions In
Environment Related Cases, (Dec 2004), 174
 19

Introduction

All living things on the planet have a right to enjoy a healthy environment. A
safe, clean, healthy and substantive environment reinforces the human rights. Human
beings also have a right to enjoy such kinds of environment. Environmental
declination potentially comes from violations of human rights. Protection of human
rights is implied to the protection of environmental rights. There are two kinds of
environmental human rights. They are substantive and procedural rights, which are
also recognized by the International and national justice system to protect their
respective environments. Some of the human rights enshrine in the environmental
instrument as the environmental rights in order to become the safe, clean and
substantial, healthy environment. And also, environmental rights are also applied as a
human rights. States are implementing the sustainable development for healthy
environment by establishing the national law and policy for the protection of
environment and sustainable development for now and future generation, and the
protection of environmental human rights are the essential role to become a healthy
environment.
 20

Conclusion

Environmental declination derives from the violation of human rights. All

States and societies are facing with the environmental issues, which are the omission
and failing to establish the respective environmental law and policy in accord with the
International Standards. All states require not only to accept the human rights as the
essential environmental rights, but also to enshrine the right to a healthy environment
in national constitutions and regional treaties, and encouraging states to implement
those laws. Unless the environmental rule of law is strengthened, even seemingly
rigorous rules are destined to fail and the fundamental human right to a healthy
environment will go unfulfilled. Human rights and environmental threats can be
protected by the implementation of national legal system and system and access to
justice in environmental matters.
But, some of the procedural human rights in environmental matter are not easy
to access in some community such as right to public participation and right to decision
making process in environmental matter. That is the major barrier of procedural
human right to enjoy the public. Therefore, the major solution is to accept the
environmental rights, as well as the public participation in environmental matter, as
the human right without exception in any matter.
 21

Bibliography

Laws
1. Constitution of the Union of Myanmar, 2008.
2. Constitution of the Islamic Republic of Pakistan, 1973.
3. Constitution of the Republic of Turkey, 1982.

Conventions and Declarations

1. The European Convention on Human Rights, 1953.
2. The International Covenant on Civil and Political Rights, 1966.
3. The Rio Declaration on Environment and Development, 1992.
4. The Stockholm Declaration on Human Environment,1972.
5. The United Nations Economic Commission for Europe Convention on Access
to Information, Public Participation in Decision-Making and Access to
Justice in Environmental Matters,1998.
6. The Universal Declaration of Human Rights, 1948.
7. Treaty on European Union, 1992.

Cases
1. Human Rights Case (Environment Pollution In Balochistan),Case No: 31-
K/92(Q) I,.
2. Tasking and Others v. Turkey (ECHR,10 Nov 2004).
3. United States Vs Canada, 1941, U.N. Rep. Int'l Arb. Awards 1905 (1949).
4. Shehla Zia v WAPDA, PLD 1994(SC693).

Books
1. Fitzmaurice, Malgosia, Contemporary Issues in International Environmental
Law, (Cheltenham, UK: Edward Elgar, 2009).
2. Giorgetta, Sueli, The Right to a Healthy Environment, Human Rights and
Sustainable Development, International Environmental Agreements:
Politics, Law and Economics (Netherlands: Kluwer Academic
Publishers,2002).
3. Louka, Elli, International Environmental Law, Fairness, Effectiveness, and
World Order, (1st edn, New York, US: Cambridge University Press,
2006).
 22

4. May, James R & Erin Daly, “Global Judicial Handbook on Environmental

Constitutionalism”, (United Nation Environment Programme, 3rd
Edition, 2019).
5. Rajamani, Lavanya and Peel Jacqueline, The Oxford Handbook of
International Environmental Law, (2nd edn, Croydon, UK , 2021).
6. United Nations Environmental Program, Compendium Of Summaries Of
Judicial Decisions In Environment Related Cases, (Dec 2004).
7. United Nations Environmental Programme, Training Manual on International
Environmental Law.
8. Venkat, Aruna, Environmental Law and Policy, (New Delhi, India: Asoke K.
Ghosh, 2011).

Journals
1. Christopher H. Lytton, ‘Environmental human rights: Emerging trends in
international law and ecocide’ , Environmental Claims Journal,
13/1(2009), 75, https://doi.org/10.1080/10406020009355152
2. Judicial Decision Involving Questions of International Law, American Journal
of International Law, 35/4 (October 1941), 684-736, https://doi.org/
10.2307/2192577

Websites
1. Alma L. Lowry, “Achieving Justice through Public Participation: Measuring
the Effectiveness of New York’s Enhanced Public Participation Plan
for Environmental Justice Communities”, Ph.D Dissertation, Syracuse
University, 2013, http:// surface.syr.edu/socsci_etd/180
2. About Human Rights and Environment, https://www.ohchr.org/en/special-
procedures/sr-environment/ about-human-rights-and-environment.
3. Donald K. Anton and Dinah L. Shelton ,Problems in Environmental Protection
and Human Rights: A Human Right to the Environment , The
Australian National University, (June 26, 2011), ANU College of Law
Research Paper No. 11-17, https://ssrn.com/abstract= 1872937 or http://dx.
doi.org/10.2139/ssrn.1872937
4. European Court of Human Right, http://www.echr.coe.int
5. https://aarhus.osce.org/about/aarhus-convention
6. https://news.un.org/en/story/2022/07/1123482
 23

7. https://unece.org/environment-policy/public-participation/aarhus-
convention/introduction
8. Human Rights and the Environment Icelandic Human Rights Centre,
https://www.humanrights.is/en/human-rights-education-project/human-
rights-concepts-ideas-and-fora/human-rights-in-relation-to-other-topics/
human-rights-and-the-environment
9. Know Your Right, Right to Effective Remedies, https://environment
rights.org/rights/right-to-effective-remedies/
10. Our Environment, Components and Importance Of Environment,
https://byjus.com/biology/our-environment
11. United Nations Environmental Programme, Environmental Rights and
Governance , Human Rights and the Environment, (9 Dec. 2020),
https://www.unep.org/explore-topics/environmental-rights-and-
governance
12. What Are Environmental Right? https://www.unep.org/explore-topics/
environmental-rights-and-governance/what-we-do/advancing-
environmental-rights/what
 24

Human Rights and Environment

Contents

Page
Introduction
1 Relations between Human Rights and Environment 1
1.1 Human Rights Relevant to the Environment 1
1.2 Environmental Human Rights 2
1.2.1 Substantive Human Rights 3
1.2.1.1 The Right to Life 3
1.2.1.2 The Right to Respect for Private Family Life and Home 4
1.2.1.3 The Right to Use and Enjoy Property 5
1.2.1.4 The Right to Decent Environment 5
1.2.1.5 The Right to Self-Determination 5
1.2.1.6 The Right to Cultural Expression and Right to Religion 6
1.2.2 Procedural Human Rights 6
1.2.2.1 The Right to Information 7
1.2.2.2 The Right to Participation 8
1.2.2.3 The Right to Equal Protection and to be Free from Discrimination 9
1.2.2.4 The Right to Judicial Remedy 9
2. International Legal Framework 11
2.1 Human Rights Instrument 11
2.2 Human Rights in International Environmental Instruments 12
2.3 Application of Human Rights Law to Environmental Issues 14
3. National Implementation 16
3.1 National Legislation 16
3.2 Environmental Human Rights in Term of Constitution 17
Conclusion
References
 25

Mandalay University
Department of Law

Seminar on
Human Rights and Environment
Prelim (2022 - 2023)

Presented by
Ma Thet Su Hlaing Tun
Prelim-Law-2