Today society’s interaction with nature is so extensive that environmental issues have assumed proportions affecting all humanity. With the industrial and technological development mankind have not only improved economic conditions but also altered the natural ecological balance. Industrialization, urbanization and poverty among others have resulted in the erosion of biodiversity and thus affected natural environment adversely.
Today the State is no longer a mere umpire and an indifferent spectator. It has become the positive State. A State acts by its legislature, its executive and its judiciary. Under Chapter VI of the 1978 Constitution of Sri Lanka, it is under duty to bring about a welfare state in Sri Lanka. As the welfare State of modern times moves into its stride, there is scarcely any aspect of activity law does not take within its province. The international legal regime in the global sense, and national legal regime in the national context are therefore essential for achieving environmental justice.
International concern for environmental protection
International concern for environmental protection is of comparatively recent origin. The United Nations Conference on Human Environment and Development Stockholm 1972 (The Stockholm Declaration (1972)) is considered to be the major event bearing on environmental protection together with the concept of sustainable development. The Declaration besides the preamble consists of seven universal truths and 26 principles.
The concern for environmental protection and sustainable development receives further boost in the “World Conservation Strategy” which was prepared in 1980 by the World Conservation Union with the advice and support of the United Nations Environment Programme. It was endorsed by the governments of the various nations at the General Assembly in 1980. The next milestone in the evolution of international environment law is the World Charter for nature which was adopted in 1982. It endorses the right of every form of life, “warranting respect regardless of its worth to man”. The World Charter also endorses environmental procedural rights and recognizes a fundamental right to a healthy environment.
The term “sustainable development” was brought into common use by the World Commission on Environment and Development (“the Brundtland Commission”) in its seminal 1987 report on “Our Common Future” (The Brundtland Commission (1987)). The World Commission on Environment and Development was set up by the General Assembly of the United Nations in 1983. The United Nations Conference on Environment and Development popularly known as the Earth Summit was held in June 1992 at Rio de Janeiro. (Earth Summit (1992)) The Documents of the Earth Summit included the following: The Rio Declaration, Agenda 21, Forest Principles and two legally binding Conventions on Climate Change and Bio Diversity. In 1997 delegates from a large number of nations attending the World Climate Conference in Kyoto in Japan reached a historic accord calling for mandatory cuts in emission of green-house gases by industrial nations in the 21st century to help to save the planet from potentially devastating global warming, here The Paris Declaration of climatic change of 2016 is also referred to.
Link between the environment and human rights
The realization that environmental problems have serious consequences for human health and well-being and could even threaten the very existence of human life on earth, had led to the dialogue on a right to a healthy environment. While the highest human right accorded to a human being is the right to life, that right could become meaningless if the environment in which he is living is degraded. The right to life does not mean the right to any kind of life.
An important development in the present context, although not necessarily recent, is the convergence of the environmental movement with the human rights movement at the national level, particularly in developing countries.
Many environmental problems give rise to human rights violations, like the right to health, livelihood, and in extreme cases, the right to life itself.
Thus, right to life and right to health are frequently invoked in relation to environmental issues. This does not mean that all environmental problems lead to human rights abuse or that every human rights abuse is caused by environmental problems or that economic development necessarily leads to environmental degradation or human rights abuse; what it does mean is that environmental problems can give rise to human rights abuse; economic development can, give rise to environmental problems.
Thus, human rights, environmental protection and economic development are inextricably inter-linked so that, very often, they have to be discussed together.
Unlike human rights issues which are often individual in nature (except, of course, issues like genocide, apartheid and slavery), environmental violations often involve groups and communities and sometimes even future generations. It also involves the right of other species to survive – called the “eco-centric approach”. Given this inter-relationship, it is not surprising that it has also received the attention of the World Court. Justice Weeramantry, the then Vice President of the Court, not only recognized the link between environmental protection and human rights, but also placed environmental protection within human rights doctrine: in his separate opinion in the Case Concerning the Gabcikovo Nagymaros Project, Justice Weeramantry noted: (Hungary v. Slowakia (1997))
“The Protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.”
The Stockholm Declaration adopted in 1972 recognizes the link between environmental protection and human rights in several of its provisions.
This is a clear recognition of the fact that, in order to enjoy human rights, the natural and man made environment is essential.
The Hague Declaration on the Environment adopted in 1989 also recognizes the link between human rights and the environment and explicitly endorses the right to live in dignity in a viable environment. Its preamble provides that: The right to live is the right from which all other rights stem. Guaranteeing this right is the paramount duty of those in charge of all States throughout the world.
Application of human rights for environmental issues
Several recognized procedural rights are increasingly applied in relation to environmental issues and are generally considered as forming part of environmental rights. These rights are found in international human rights law and reflected for most part in national constitutions.
These rights include: the freedom of information, right to participate in the decision-making process which is transparent and participatory and which holds the government entity in question accountable for its action. In other words, they promote the principles of transparency and accountability, essential for democratic governance. Applied in relation to environmental issues these mean the right to have access to information affecting one’s environment, the right to participate in decisions affecting one’s environment, the right to participate in decisions affecting the environment and the right to seek redress in the event one’s environment is impaired. Several international instruments, both binding and non-binding, endorse environmental procedural rights. The Rio Declaration contains several provisions on these rights.
The Declaration contains a provision on environmental impact assessment (Principle 17) for activities that are likely to have a significant adverse impact on the environment. The EIA process is important as it provides access to information, and is transparent and participatory in nature. Thus, the right to receive information relating to the environment, the right to participate in the decision-making process and the right to seek redress for the vindication of environmental rights are recognized rights under international environmental law. These rights, particularly, the right to information and the right to participate promote principles of transparency and accountability which are essential in a democratic society.
The Sri Lankan Supreme Court pronounced in a recent case, public participation and transparency are essential if sustainable development is to be achieved. (Gunaratne v. Homagama Pradeshiya Sabha and Five Others (1998)). In other words, sustainable development cannot be achieved where secrecy and anarchy reign and where the fundamental rights of people are not respected.
Substantive rights
Several existing substantive human rights have been used in relation to environmental issues, notably, the right to life, right to health and the right to an adequate standard of health in the absence of a specific environmental right or right to a healthy environment. The drawback of this approach is that the victim has to prove that the environmental issue in question has violated one of his human rights. If this link cannot be established, then the action would fail: Thus, for example, a victim of pollution caused by an industrial establishment has to prove that, as a result of suffering pollution damage, his health has been impaired or his standard of living has been affected. It may not be easy to establish this link in every case.
On the other hand, the recognition of a distinct right to a healthy environment would allow a victim to establish that the pollution level in his neighbourhood has increased as a result of the industrial establishment and exceeds the permissible level for that particular pollutant/s (assuming, of course, that such levels have been laid down). In such a situation, it is not necessary to establish individual injury which may be long term anyway, as the victim would be in a position to establish that the environment he is living in has been polluted by the activity of the industry in question. He only needs to establish that because of the emission of a pollutant above a certain threshold, the environment is no longer healthy for him to live in.
In order to proceed on this basis, however, thresholds and standards for the emission of pollutants have to be laid down. This approach thus circumvents one major problem inherent in the litigation process, namely establishing injury to oneself and establishing causation. The other advantage of this approach is that timely action can be taken to remedy the environmental problem without having to wait until significant injury to people has manifested itself. In some instances, establishing injury is not a problem, but by then, the environmental problem has persisted for so long that remedial action has become either impossible or too expensive.
While many States do not embody a specific right to a healthy environment, they do have mechanisms in place in relation to human rights violations. These mechanisms have been used by environmentalists and victims of environmental injustices to vindicate their rights. Though not without its own problems, these human rights mechanisms have played an invaluable role in protecting environmental rights.
Sri Lanka
The 1978 Constitution of Sri Lanka does not guarantee the right to life. It also does not specifically endorse the right to a clean environment. Although the fundamental rights Chapter III of our Constitution is silent on these matters, the directive principles of state policy and fundamental duties in Chapter VI of the 1978 Constitution specifically refer to the protection of the environment and provides in Article 27(14) that :”The State shall protect, preserve and improve the environment for the benefit of the community”. These directive principles “shall guide the Parliament, the President and the Cabinet of Ministers in the enactment of laws and the government of Sri Lanka for the establishment of a just and free society”.
According to Article 28(f) of the 1978 Constitution among the fundamental duties of every person in Sri Lanka is the duty “to protect nature and conserve its reaches”. Article 29 of the 1978 Constitution, however, mandates that the constitutional provisions in the Chapter VI on directive principles of state policy and fundamental duties do not confer legal rights or obligations on or upon the state and are thus not enforceable in any court or tribunals. The most significant judgment in the area of environmental protection and sustainable development was delivered by our Supreme Court Bulankulama and others v. the Secretary of Industrial Development and Others (2000) which is commonly referred to as the Eppawala judgment the discussion of which is essential in this context. Seven petitioners, six of them being farmers and a monk from a temple in the vicinity of the Eppawala Phosphate deposits claimed that the proposed agreement between the government of Sri Lanka and Freeport MackMoran Resources Partners of USA, a multinational mining company to whom the right to exclusively mine the phosphate deposits was to be given, would result in the violation of those fundamental rights to equality (Article 12), the right to engage in an occupation of one’s choice (Article 14(1)(g)) and freedom to movement and choosing one’s residence within in Sri Lanka (Article 14(1)(h)) of the 1978 Constitution.
Justice Amarasinghe, on behalf of the Supreme Court, in a lengthy judgment took the parameters of the discourse of constitutional protection of rights to new heights. His lordship held that the proposed agreement indeed violate the rights of the petitioners under Article 12(1), 14(1)(g) and 14(1)(h) of the 1978 Constitution.
The argument raised by the petitioners that the State is under an obligation to utilize national resources in a sustainable manner was discussed in length in the judgment. The Supreme Court referred to both the Stockholm (1972) and the Rio (1992) Declarations on Environmental Protection and highlighted the principles relating to sustainable development, according to which the proposed agreement must be reviewed.
The Court noted that human beings are at the centre of the concept of sustainable development and that they are entitled to a healthy and productive life in harmony with nature. The Court stated that in order to achieve sustainable development environmental protection shall constitute an integral part of the development process. The Supreme Court also emphasized that Sri Lanka as a member of United Nations could “hardly ignore” environmental requirements in the Stockholm and the Rio Declarations.
Undoubtedly, environmental rights are not self executing and they need positive State intervention for their fulfillment. This charactertic of the right to environment may cause some difficulties in its full realization and enforcement as there is no identified, specific formula to carry out this process. A holistic approach to the subject through an innovative method based on the legal system would ease such difficulties in the process of executing environmental rights.
A human rights approach to environmental protection is not proposed to the exclusion of other approaches or species with and ecology. Rather, it is proposed as a tool to implement other approaches and mechanisms on environmental protection. It is strongly recommend that human right to healthy environment be incorporated into Fundamental Rights Chapter of the Constitution to be proposed.
