Protecting the Environment: It’s Not Just about Saving the Whales

Environmental issues are not just environmental issues anymore.[1] Increasingly, the human population has come to recognize that working to protect the world from global climate change is not important merely because we think that that two-degree-Celsius change might make it a little more necessary to don a pair of shorts and show off legs we think are less than ideal.[2] Or because we think that protecting the rain forest from rampant deforestation is only important because we need to go around hugging trees—which is much more difficult when there are fewer of them.[3] Instead, environmental issues are coming to the forefront because of their overlap with human rights issues.[4] As the Stockholm Declaration states, “[M]an’s environment . . . [is] essential to . . . the enjoyment of basic human rights.”[5]

National, international and regional human rights mechanisms have come to recognize this fact with greater frequency over the course of the last decades. Since 1976, ninety national constitutions have come to contain environmental provisions on issues such as the right to a healthy environment.[6] For example, an Additional Protocol to the American Convention on Human Rights recognizes the right to a “healthy environment”[7] and imposed upon the States Parties the obligation to “promote the protection, preservation, and improvement of the environment.”[8] The African Charter on Human and Peoples’ Rights states that, “all peoples shall have the right to a general satisfactory environment favorable to their Development.”[9] At the universal level, the Human Rights Committee passed a resolution providing for the appointment of an independent expert to study the relationship between human rights and the environment.[10]

Just last month, The United Nations Independent Expert on Human Rights and the Environment, John Knox, stressed that, “Human rights law must be taken into account in developing environmental governance,” and that “The Rio+20 follow-up should reflect States’ obligations to take steps to prevent environmental degradation that violates human rights, and to protect the human rights of those threatened by environmental harm.”[11] He found that environmental issues are related to human rights in two main ways: (1) environmental degradation affects adversely the enjoyment of human rights such as the right to health, food, water, and life; and (2) exercising certain human rights, such as the rights to speech, association, information, and to a remedy, results in better environmental policymaking and more environmental protection.[12] Unfortunately, a State’s obligations pursuant to these rights are less obvious and currently not fully explainable.[13]

However, this should not stop States from fully addressing the consequences that accompany the combining of these two rights regimes.[14] As he says,

States and other stakeholders [should] remember that the lack of a complete understanding as to the content of all environmentally related human rights obligations should not be taken as meaning that no such obligations exist. Indeed, some aspects of the duties are already clear. Perhaps most obviously, otherwise applicable human rights obligations are not lessened merely because the environment is concerned.[15]

What this statement poses for the United States is a challenge—a challenge to ensure that we do not overlook human rights issues merely because they are related to or caused by environmental factors. For example, when Louisiana’s air quality laws may exempt an individual, high-impact polluter from regulation,[16] one must ask whether or not this complies with environmental law—and, importantly, whether or not this comports with human rights obligations. If it does not, a second question is posed: what are we going to do about it?

–Ariel Gould, Associate

[1] See generally, e.g., Human Rights Council (HRC), Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John H. Knox, ¶ 19, U.N. Doc. A/HRC/22/43 (Dec. 24, 2012) ( “In a real sense, all human rights are vulnerable to environmental degradation, in that the full enjoyment of all human rights depends on a supportive environment.”).

[2] Press Release, Climate Change Secretariat, UN Climate Change Conference in Doha Kicks off with Calls to Implement Agreed Decisions, Stick to Agreed Tasks and Timetable, U.N. Press Release (26 November 2012), available at http://unfccc.int/files/press/press_releases_advisories/application/pdf/pr20102611_cop18_open.pdf.

[3] See, e.g., Stan Lehaman, Amazon Deforestation Destroyed UK-Sized Area between 2000 and 2010, Study Says, HuffPost, Dec. 4, 2012, http://www.huffingtonpost.com/2012/12/04/amazon-deforestation_n_2237479.html.

[4] See, e.g., Romina Picolotti & Jorge Daniel Taillant, Linking Human Rights and the Environment (2010).

[5] Stockholm Declaration United Nations Conference on the Human Environment, Stockholm, Sweden, June 16, 1972, 11 I.L.M. 1416, pmbl.

[6] HRC, Report of the Independent Expert, supra note 1, at ¶ 12. For example, Portugal (the first country to adopt such a provision), has a constitution that states that: there were as right to a “right to a healthy and ecologically balanced human environment.” Id.

[7] Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights art. 11(1), Nov. 17, 1988, O.A.S.T.S. 69 [hereinafter Additional Protocol].

[8] Additional Protocol, supra note 7, at art. 11(2).

[9] African Charter on Human and Peoples’ Rights (Banjul Charter) art. 24, June 27, 1981, 21 I.L.M. 58.

[10] H.R.C. Res. 19/10, U.N. Doc. A/HRC/19/L.8/Rev.1 (Marc. 22, 2012).

[11] U.N. Office of the High Comm’r for Human Rights, Protecting the Environment “Not Just about Environmental Harms, but Rights—Human Rights” (Feb. 19, 2013), available at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=13011&LangID=E.

[12] Id. at ¶ 34.

[13] Id.at ¶ 35.

[14] Id. at ¶ 60.

[15] Id.

[16] News Release, Mossville Envtl. Action Now, Inc., Mossville Group Files Lawsuit against the Louisiana Department of Environmental Quality (Sept. 13, 2012), available at  http://www.ehumanrights.org/docs/MEAN%20News%20Release%2012-09-13.pdf.

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