Should There Be A Human Rights Approach for Environmental Protection?
Is climate change just an environmental issue or also a human rights issue? Do we need a new international environmental treaty to address the rights of people displaced from their homes? When the rights of indigenous people are in question, is it a human rights issue or an environmental issue or both? Such issues require us to consider the interaction between environmental laws and human rights law.
There are three commonly discussed approaches to examining the interaction between environment protection and human rights. This piece investigates these three approaches to examine if the human rights law regime should subsume the environmental law regime, if the latter should subsume the former or if both the legal regimes should exist separately, with mutual interaction.
First, human rights laws, institutions and processes can be invoked for asserting a right to clean environment. This usually leads to adopting a rights-based approach for environmental protection with an emphasis on the right to clean environment, as in a series of judgments given by the Supreme Court of India under Article 21 of the Indian Constitution (which guarantees protection of life and personal liberty). For instance, in T.Damodhar Rao v. Municipal Corporation of Hyderabad, the High Court held that ‘slow poisoning…caused by environmental pollution and spoilation should also be treated as amounting to violation of Article 21. This approach was also followed in subsequent cases such as Kinkri Devi v. Himachal Pradesh.
A second approach would be to leverage environmental laws, concepts, institutions and processes for better protection of human rights which could not be attained in the absence of a clean and healthy environment. In other words, tort and statutory regulations which make reference to ‘environment protection’ could be used to assert protection of human rights. For instance, in the Bhopal Gas Tragedy case, criminal charges were brought for an industrial disaster that had huge environmental ramifications and left around 25,000 people dead and more than 120, 000 people affected.
The final approach could be to interfuse environmental law and human rights. The movement towards “sustainable development,” which considers the needs of present and future generations, seems to be heading in that direction.
I argue that human rights law and environmental law should continue to develop as two independent but closely linked fields whilst ‘borrowing’ apposite concepts. For instance, in countries where a separate right to environment is not formulated in clear terms, the existing human rights provisions regarding right to life and human dignity can be invoked, on the basis that the right to decent life cannot be protected in the absence of its concomitant right to clean environment.
However, a human rights-based approach can lead to an anthropocentric approach to environment protection. Subsuming environmental law into human rights makes the environment only a function of human needs and rights rather than as an issue that deserves protection in and of itself.
The separate existence of environmental and human rights organisations within a multilevel governance structure therefore has its advantages. These institutions can join forces for specific overlapping objectives. For instance, the coming together of OHCHR and UNEP for a joint report on human rights and environmental protection is laudable and it helps both institutions to identify the common ground that they can cover together, strengthening each advocacy platform.
Taking a human rights approach to environmental protection is advantageous in that it reinforces the concept of mutual goals and the serious ramifications each may have on the other. Framing the relationship in terms of an irreconcilable tension between developmental prerogatives and environmental prerogatives stalls progress for environment protection both at international level (by pitching developed countries versus the developing countries in international environmental negotiations), and at national level (by making environment protection subservient to developmental priorities).
It is therefore imperative that developmental concerns and environmental concerns are not seen as conflicting, but that all actors realise the need to integrate them in order to make sustainable development a reality. We need to give more flesh to the concept by having more explicit legal provisions, institutions and practice which refer to it directly and in a binding manner, as this can help us in achieving sustainable development in all its dimensions.