To deal with growing demands for a legally-binding and universally recognised right to a clean and healthy environment, it is important to frame the various aspects of the proposed right. Two areas require attention. Firstly, the substantive part which creates, defines, and regulates the rights and secondly, the procedural aspect which prescribes method of enforcing rights or obtaining redress for their invasion. Generally, the two areas of law are interdependent because “procedure is inherently substantive” and “substance is inherently procedural”. As advocacy for the legal recognition of the right to a healthy environment internationally gains prominence, this article highlights some of the main elements to be borne in mind.
Substantively, a right to a clean and healthy environment should touch on among others, the issues of state obligations, transboundary concerns and the quality of the environment.
Generally, international law regulates the interrelationship between states and deals with several matters including human rights. Treaties, as a source of international law are one way of codifying global human rights. As parties to treaties, States are bound by their signature to respect, protect and fulfil human rights. In environmental matters, States have two main substantive obligations which have aspects of legislation, regulation, enforcement, due diligence and compliance monitoring as illustrated by several cases. In Öneryıldız v. Turkey, the Court held that the Turkish government’s failure to institute appropriate steps to prevent the accidental death of the applicant’s relatives as a result of a methane explosion breached a substantive aspect of the Convention. In Ecuador, the Inter-American Commission on Human Rights in a report considered that “the absence of regulation, inappropriate regulation, or a lack of supervision” in the implementation development projects might “create serious problems with respect to the environment” and urged the State to perform its duty of implementing “measures necessary to remedy the current situation”. The case of Marangopoulos Foundation for Human Rights (MFHR) v Greece emphasizes the State’s “obligation to effectively monitor the enforcement of regulations on health and safety”. Moreno Gómez V Spain implores States beyond developing regulations, to enforce them otherwise they will “serve little purpose”. In a nutshell, the obligations of States—primary duty bearers under international law—need to be clearly articulated as a substantive provision in a right to a healthy environment because that will be a basis for holding States accountable.
Regarding transboundary concerns, States have previously assumed full and absolute sovereignty and were at liberty to exploit resources in their jurisdiction with no attention to the impact on their neighbours. However, this may not be the case today, especially in the era of various global environmental concerns. The Stockholm Declaration and Rio Declaration recognize States’ sovereign right to exploit their own resources and simultaneously, the responsibility to ensure that activities do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Decades ago, the Trail Smelter case established that “(n)o state has the right to use or permit the use of the territory in a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein as stipulated under the United States laws and the principles of international law.” This is sometimes called the No Harm rule. Addressing transboundary aspects is crucial because environmental issues do not respect political or cultural boundaries. It is thus important that a right to a healthy environment should aggregate all the soft law and case law on this principle and have a substantive clause to that effect. Lastly, as I noted elsewhere, the quality of the environment under the existing international law on environment is littered with very several descriptive terms. Having a standard and concise description of a right to healthy environment is important for a uniform interpretation at the global level. Lewis wonders what the “right to a healthy environment” itself means asking whether it is intended to mean an environment which is good for human’s health, or which is in good health itself. Burton raises a few fundamental issues that need to be answered including; the criteria of determining a good-quality environment and how the benefits of environmental improvements can be measured.
On procedural aspects, the Special Rapporteur’s report identifies three core state procedural duties, namely; assessing environmental impacts as well as publicising environmental information; facilitating public participation; and enabling access to justice.
Environmental information helps in protecting the environment and accessing it enhances public participation in decision-making. Principle 10 provides for “appropriate access to information” in government hands regarding the environment including on harmful activities. Similarly, Principle 20 advocates for “the free flow of up-to-date scientific information” to “facilitate the solution of environmental problems.” Article 4 of the Aarhus Convention implores public authorities to make environmental information available to the public and sets down guidelines for executing this role. These illustrate how access to information is well-grounded within the existing soft law. The right has been applied in several cases as captured in an individual report on the Aarhus Convention. A failure by a public authority in Spain to provide the environmental information in a CD for a cost of 13 Euros instead of paper copies of 600 pages at 2.05 Euro per page amounted to a breach of the Convention. In Kazakhstan, the failure to establish and maintain, a clear, transparent and consistent framework to implement the Convention was considered a breach. Similarly, the general argument by Romania that Environmental Impact Assessment studies were scientific studies protected by copyright law and could only be made publicly available without the express consent of the author was considered an infringement on the right to access to information. From these, it is demonstrable that a proposed right to a healthy environment should have a clear procedural right of access to information which specifies how requests for information are made, exceptions, formats of delivering information, timelines, costs, etc. This will ensure that States do not renege on their obligation using frivolous excuses aimed at defeating the public’s right to know.
The right to public participation seeks to balance government’s and society’s interests. The Rio Declaration emphasizes the significance of the input of “concerned citizens” at all levels. It legitimizes and enriches decision making with the input of those likely to be affected by the decision. This cures or minimises the prevalent mistrust and conflict that usually bedevils environmental decision making. Articles 6 and 7 of the Aarhus Convention provide for public participation in environmental matters and touch on issues of the decision on permission, proposed activity, nature of decision, responsible public authority, opportunities and timelines for public participation, Environmental Impact Assessments et cetera. The Compliance Committee has interpreted the different aspects of this right in several cases. The matter of the Czech Republic clarified that Non-Government Organizations promoting environmental protection automatically qualify as “public concerned” and can thus institute complaints without having to prove they are affected. The case of Slovakia stressed that public participation needs to be provided early to ensure all options are open and that effective participation can occur. The European Community case stated that secondary legislation that lacks express wording to inform the public in an “adequate, timely and effective manner” about public participation may adversely affect the public participation. In summary, the procedural right to public participation ensures that people likely to be affected by the environmental decision have a meaningful opportunity to shape the process and ensure their concerns are factored in the decision-making process.
Regarding access to justice in environmental matters, the European Commission notes that this procedural right enables the public to question the legality of “decisions, acts or omissions” of the government. To this end, accessing legal remedies is crucial because it enables people to hold authorities accountable and ensure protection of their environmental rights. Article 9 of Aarhus Convention provides for any aggrieved person’s right to access “a review procedure before a court of law or another independent and impartial body established by law.” Among the key tenets of this right are; ‘sufficient interest’, remedies, timelines, locus standi, etc. which have been explained in cases before the Compliance Committee. The Kazakhstan case established that procedures and decisions under Article 9 should be fair, equitable and affordable. In Austria, the requirement for a separate “official notification” before an appeal of a denial of an information request and the failure to ensure the “standing of environmental NGOs to challenge acts or omissions of a public authority or private person” was held to violate the Convention. Basically, a right to a healthy environment, for procedural clarity, needs to address the trilogy of environmental information access, public participation and remedial options to enable enjoyment of the substantive right.
Overall, for the right to a healthy environment to gain legal recognition, there is need for a law to create, define and regulate the right and at the same time, clear laid down procedures for enforcing the right. Advocates for the right should bear in mind the above substantive and procedural elements in their quest for its legal recognition globally. This will support its development and ultimate enforcement.