In 1994, the Secretary General of the United Nations stated that, “without protection of the environment, the basis of human survival will be eroded.” In 2005, the Millennium Ecosystem Assessment stated that, “everyone in the world depends on nature and ecosystem services to provide the conditions for a decent, healthy and secure life.” It also argued that natural assets will receive better protection if their importance is recognised in the central decision-making of governments and businesses, rather than leaving policies associated with ecosystems to relatively weak environmental departments. Arguably, time has shown that the existing principles of “sustainable development” alone will not be sufficient to protect the interest that present and future generations have in the environment. It can be argued that such an interest needs to be rooted firmly in positive law at both national and international levels. This has led to research relating to the potential development of an international substantive environmental right that would have the capacity to create legal duties for all “decision-makers” to protect the environment.
Historically the development of the law relating to “human rights and the environment” has been fragmented. Although within international law there is no globally applicable substantive human right for the protection of the environment, specific substantive environmental rights have been included within two regional human rights treaties (The African Charter of Human and Peoples’ Rights 1981 and the Additional Protocol to the American Convention on Human Rights (The Protocol of San Salvador) 1989). Within international environmental law, there have been numerous declarations, which have amounted to “soft law”. (E.g. Principle 1 UNCHE declaration 1972 and Principle 1 UNCED declaration 1992).
At the national level, constitutional rights have been used to protect the environment for many years. In a wide range of jurisdictions, judgments recognize the links between human rights and the environment, and the necessity to protect the environment as a human right. (However, caution must be added, as such provisions often fail to constrain decision-making in the fields of national policy-making and national law-making.)
Additionally, procedural environmental rights have become commonly accepted and it would be possible to argue that they have become legal norms in many parts of the world. As a result of the aforementioned developments, some have argued that an anthropocentric right to a “healthy” or “clean” environment” has become accepted in some regions.
In 1989 the UN appointed a special rapporteur, Ms Ksentini, to preside over a 5-year examination of the linkages between human rights and the environment. Significantly, the final report, published by the UN Commission on Human Rights in 1994, included a draft substantive environmental right. Although the members of the UN decided not to take the necessary steps to enact the draft into a binding legal instrument, its very existence highlighted the potential for such a right to be developed.
The concept of developing a substantive environmental right raises many challenges. Of course, it raises the basic question of whether or not it is appropriate for the environment to be protected by way of such a right. If it were deemed to be appropriate, the issue of the nature of that right would then become important. For example, should such a right be solely anthropocentric in nature, or should it protect all aspects of the environment? Additionally, the question of whether non-state actors as well as state actors should be directly subject to the responsibilities framed under such a right, would need to be clarified. In terms of the operation of such a right, questions of how (if at all) it should be tied to fixed qualitative standards would have to be asked. Furthermore, the issue of how it would work in practice and how it could be applied in a fair manner to take into account the differing economic capacities of states would need to be addressed.
In recent years, research at London University has examined the possibility of developing a substantive environmental right that would create legal duties for “decision-makers” to protect all aspects of the environment. The conclusions of the research suggest that such a right should directly create legal duties, not only for state actors, but also for actors such as companies and multinational enterprises, multilateral development banks and the WTO. The resultant draft substantive environmental right can be found on the “Draft Right” page of this website.
This website is dedicated to the further research and development relating to the potential of a substantive environmental right. Related books, articles and papers are detailed on the Resources page of this site. We welcome you to make contact with details of other resources that are directly related to this field in order that they can help to facilitate research and development in this area.
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