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Upsurge of Environmental Hazards and the Need for Global Recognition of the Right to a Healthy Environment

Upsurge of Environmental Hazards and the Need for Global Recognition of the Right to a Healthy Environment

26.5.2020 | MAY 25, 2020 11:43:38 PM Nabil Iqbal and Syeda Mehar Ejaz Edited by: Cassandra Maas | 53



The environment and the economy are really both two sides of the same coin. If we cannot sustain the environment, we cannot sustain ourselves.” – Wangari Maathai

As the coronavirus pandemic unfolds across the globe, threatening lives and upending the world economy, an unexpected side effect has been a decrease in greenhouse gas emissions. Greenhouse gas emissions have plunged due to the rapid decline in travel and economic activities. They are likely to go back up once the pandemic subsides, but this will still have lasting effects on the environment. This can be considered the only positive impact of the coronavirus crisis.

However, the recent polymer gas leak in Vishakhapatnam, India has undermined the ecosystem recovery. The tragedy has killed many and injured thousands, and the extent of gas leak’s impact is yet unknown. The government has constituted a committee to study the aftermath of the tragedy on public health. The areas within a five kilometer radius of the plant are said to be affected, and further spread depends on the wind speed. Clearly, the areas within the radius will be inhospitable, as the poisonous gas is believed to affect plantation and the underground water table. The Vizag gas leak is yet more proof of the ignorance of implementation of a right to a healthy environment. Extraordinary situations demand extraordinary decisions and, to date, mankind has not been able to take a righteous stand to protect himself and his right to live in a healthy environment.

There is an extensive history of nuclear and chemical hazards that have affected mankind and impeded the right to a healthy environment. The Bhopal Gas tragedy in India, which resulted from the escape of toxic methyl isocyanate from the Union Carbide insecticide plant, is regarded as the world’s worst industrial accident, killing thousands. The fatal repercussion of the incident is still haunting the city. The tragic nuclear disaster at Chernobyl, Ukraine released radiation which spread over parts of the Soviet Union, Scandinavia, and Eastern and Western Europe, threatening the lives of thousands. As a consequence, the entire population of Pripyat, Ukraine was relocated and the town is uninhabitable. People will not be able to settle the area near Chernobyl for thousands of years. These fatal incidents, from Chernobyl to Vizag, are compelling examples of why the right to a healthy environment should be a well-recognized right.

Over the past few decades, substantial damage to the environment has increased exponentially, which has affected the wide arena of human rights. While there is a large list of civil and political right violations due to environmental degradation, the right to a healthy environment is least discussed. Environmental well-being is prerequisite to uphold the right to life and human dignity. Further, in order for people to remain healthy and lead dignified lives, protection of the environment is pivotal. It is high time that this right attain the status of a fundamental right in the international realm. The right to a healthy environment was mentioned in the Stockholm Conference as a non-binding principle. The 1972 United Nations Stockholm Conference on the Human Environment proclaimed:

“Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality which permits a life of dignity and well-being and bears a solemn responsibility to protect and improve the environment for present and future generations.”

Needless to say, it still is a non-binding but recognized right. It is recognized in international and regional conventions, as well as in national laws of some countries. The International Covenant on Economic, Social and Cultural Rights (ICESCR) partly recognizes the right to a healthy environment under the right to health and requires the state parties to “improve all aspects of environmental and industrial hygiene.” The Protocol of San Salvador recognizes the right to live in a healthy environment.  The Inter-American Court of Human Rights issued an advisory opinion and gave the verdict that the right to a healthy environment is a human right.  

The International Network for Economic, Social & Cultural Rights (ESCR-Net) Committee has stated in General Comment 14 that the right to a healthy environment includes precautionary procedures in respect to occupational accidents and diseases; the obligation to guarantee an adequate supply of clean water; basic sanitation; and the prevention and diminution of the population’s exposure to detrimental substances, such as radiation and harmful chemicals, or other unfavorable ecological surroundings that directly or indirectly effect human health.

The 1972 Stockholm Conference was very important, as it marked the first essential step towards recognizing this right. Since the U.N. Conference in 1972, about 155 countries have incorporated or recognized the right to a healthy environment into their constitutions, in changeable formulations. The recognition and inclusion of the right to a healthy environment in constitutions and legislation is definitely a progressive step. However, this progressive step can turn into a futile one, discerning the number of cases being brought to the attention of UN Human Rights mechanism. The national, as well as international, policy arrangements and implementation measures regarding the right to a healthy environment are insufficient. They are also ineffective, because they are not implemented in many countries, especially the developed ones. Also, the implementation method is inefficacious, owing to the lack of resources, technology, and support from the international arena. Indeed, the connection between environment, health, and the whole arena of human rights is being well established worldwide in the form of various laws, treaties, conventions, and legislation. These are well accepted by states when implemented in practice, and their violations are well-recognized by the courts.

The upsurge of environmental hazards undoubtedly shows the passive approach of most countries towards the need of a healthy environment, but it is worth mentioning that there are a few countries that have responded to the environmental degradation with strong legal measures. Kenya, Rwanda, France, and Morocco are a few but inspiring examples of proper implementation of a ban on plastic usage. Mexico City took a commendable approach to reduce air pollution by banning all vehicles once every month. Although the developed countries are considered the mainspring basis for major environmental hazards, surprisingly, the United States ranks third in the Environmental Democracy Index. It is considered one of the best countries for environmental protection due to stringent legislation.

While acknowledging the lack of implementation of the existing environmental laws, it would be unfair not to mention Lithuania, which tops the Environmental Democracy Index. The inflexible and stern environmental laws of Lithuania set an ideal for other countries to follow. In Lithuania, people have the right to access information related to the environment and approach the court if their rights are being violated. The Environmental Protection Laws of Lithuania entitle the people to challenge the government if their environmental rights are being violated. The governmental authorities need to gather input from the people in order to determine the policies that may affect their environment.

The need for a healthy environment may not be realized yet by many countries, but the upsurge of chemical and nuclear hazards corroborates that governments need to introduce rigid laws on the right to a healthy environment, so that the disastrous history of Chernobyl or Bhopal may not repeat itself.

After the disastrous Bhopal Gas tragedy in 1984, the Supreme Court of India took a noteworthy stand and evolved the rule of absolute liability in the 1986 Oleum gas leak case. Such strong legal opinion not only deliberates the importance of formulation and implementation of stringent environmental laws, but also prevents the violation of the right to a healthy environment. However, the Vizag gas leak incident is sufficient to show the ignorance of mankind towards his rights, as well as duties, to the environment. Proceeding from the disastrous tragedies of the Bhopal gas leak and the Vizag styrene gas leak, the continued ignorance of the need for a right to a healthy environment can be reflected in the lack of implementation of environmental laws adopted by the states.  

One of the primary reasons behind the failure of recognition and implementation of a right to a healthy environment in the states is the lack of a proper compliance mechanism. In order to tackle the upsurge of environmental hazard and to bring about the actual consciousness of the governments about the importance of a right to a healthy environment, it is imperative that the compliance mechanism is analyzed. The non-acceptance of the compliance mechanism should ensure a responsibility. The proper dispute settlement procedures would also pave the way for a strong compliance mechanism. Only the proper compliance mechanism would lay the foundation for the implementation of the right to a healthy environment.

The policies and legislation encompassed by the countries at the peak of the Environmental Democracy Index should serve as an ideal for other countries. This would, in turn, pave the way for other countries to properly realize their right to achieve a healthy environment.

An environment conducive for healthy well-being is an indispensable requirement. It should be the duty of the states to take concrete measures to ensure the realization of the basic human right to live in a healthy environment. States should formulate procedures that allow the citizens to take action against the violation of their rights. The individuals should have access to the information regarding the environment. They should have a say in the decision making and policy issues which may considerably affect the environment in which they live. Legal remedies should be made available for those whose rights have been violated, and proper redress should be available. To attain this goal, cooperation on individual level as well as from the corporate and public sectors is essential. 

 

Nabil Iqbal and Syeda Mehar Ejaz are third-year law students at Jamia Millia Islamia, in New Delhi, India

Source : https://www.jurist.org/commentary/2020/05/iqbal-ejaz-healthyenvironment-rights/

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