Haritha Sharma, Interim Editor, SpeakingThreads
Environmental degradation cannot be contained within every nation’s political boundary, so fighting against environmental degradation is not a war between the nations, but it is a battle where all the nations get together to save the environment from their own wrong doings. There is a very famous Native American Proverb that says, “The frog does not drink up the pond in which he lives”.
The environment is our life support system. It has everything that a human being or any other living being would require for its sustenance – air, water, food and other minerals. The future of our environment lies in our hands, we have the power to save it or destroy it. So we must remember that every erroneous action of ours, will be taxing on the future. There is no rule of thumb, which we can follow to save the environment, as this is a matter of opinion rather than a matter of fact. The earth is the habitat of not just human beings but all living creatures. Increasing human activities is threatening this very habitat, which we call home. The environment, since the days of industrial revolution, has borne the brunt of the horrific actions of man. As man got more and more ambitious, he simultaneously became blind to the fact that the environment cannot be replenished. Still it seemed like he was competing against himself to destroy the earth. Matters got worse when those inventions, which could save the environment, were being used to ruin it. Man’s actions have put a greater strain on the environment leading to various problems like pollution and loss of bio-diversity.
If we look at society from a historical perspective, we realize that protection and preservation of the environment has been integral to the cultural and religious ethos of most human communities. Ancient Hindus, Greeks, Native Americans and other religions around the world have venerated nature. They worshipped all forms of nature believing that it emanated the spirit of God. Hinduism declared in its dictum that “(t)he Earth is our mother and we are all her children.” [†] The ancient Greeks worshipped Gaea or the Earth Goddess.
Dealing with natural resources is a “matter of justice” between the generations. It is here where the notion of sustainable development must be brought in. What is sustainable development? “It is the development that meets the needs of the present without compromising the ability of future generations to meet their own needs” – Mrs. Gro Harlem Brundtland [‡]. Elucidating on this, it simply means that if man continues to play the part of a self-absorbed creature, his successive generations will really have nothing to live on.
In his separate opinion, Weeramantry, the then Vice President of International Court of Justice in the Gabcikovo-Nagymaros project, between Hungary and Slovakia, had explained the principle of sustainable development. “The court must hold the balance even between the environmental considerations and the developmental considerations raised by the respective parties. The principle that enables the court to do so is the principle of sustainable development.” He called it the principle of normative value or a principle fundamental to the determination of the competing considerations.
Approaches to environmental law and human rights
Human rights and environmental law have customarily been envisioned as two distinct, autonomous spheres of rights. Towards the last quarter of the 20th century, however, the awareness arose that the cause of protection of the environment could be promoted by setting it in the framework of human rights, which had by then been firmly established as a matter of international law and practice. Because of the many complex issues that arise when these two seemingly distinct spheres interact, it is to be expected that there are different views on how to approach ‘human rights and the environment’.
- The first approach is one where environmental protection is described as a possible means of fulfilling human rights standards. Here, environmental law is conceptualized as ‘giving a protection that would help ensure the well-being of future generations as well as the survival of those who depend immediately upon natural resources for their livelihood.’ Here, the end is fulfilling human rights, and the route is through environmental law.
- The second approach places the two spheres in inverted positions – it states that ‘the legal protection of human rights is an effective means to achieving the ends of conservation and environmental protection.’ The second approach therefore highlights the presently existing human rights as a route to environmental protection. The focus is on the existing human right. In this context, there exists a raging debate on whether one should recognize an actual and independent right to a satisfactory environment as a legally enforceable right. This would obviously shift the emphasis onto the environment and away from the human rights. These are the subtle distinctions between the two ways in which this approach can be taken.
- A third approach to the question of ‘human rights and the environment’ is to deny the existence of any formal connection between the two at all. According to this approach, there is no requirement for an ‘environmental human right.’ The argument goes that, since the Stockholm Conference in 1972, international environmental law has developed to such extents that even the domestic environments of states has been internationalized. In light of the breadth of environmental law and policy, and the manner in which it intrudes into every aspect of environmental protection in an international sense and notwithstanding the concept of state sovereignty, it is argued that it is unnecessary to have a separate human right to a decent environment. This view militates against the confusion of the two distinct spheres of human rights law and environmental law. However, there are many who oppose this view. They argue that there is in fact a benefit to bringing environmental law under the ambit of human rights. Environmental law has in many parts of the world, be it at the international or domestic level, suffered from the problem of standing. Because of this barrier, it is often difficult for individuals or groups to challenge infringements of environmental law, treaties or directives, as the case may be.
There has been a great deal of debate on the theoretical soundness of the idea of a human right or rights to a satisfactory environment. [§] For one thing, there can occasionally be a conflict, or tension, between the established human rights and the protection of the environment per se. There are circumstances where the full enjoyment of the rights to life, to healthy living and to ones culture can lead to the depletion of natural resources and environmental degradation. Nevertheless, clearly there is a prima facie rhetorical and moral advantage in making the environment a human rights issue. [**] There has been a simultaneous increase in ‘legal claims for both human rights and environmental goods,’ which is a clear reflection of the link between ‘human’ and the ‘environment’ and the dependence of human life on the environment.
Awareness of the major challenges emerging both as regards development and with reference to the environment has made possible a consensus on the concept of “sustainable and environmentally sound development” which the “Earth Summit”, meeting in Rio in 1992, endeavoured to focus by defining an ambitious programme of action, Agenda 21, clarified by a Declaration of 27 principles solemnly adopted on that occasion. We can also refer to the content of the Declaration on International Economic Cooperation adopted by the General Assembly in May 1990, which clearly recognizes that “Economic development must be environmentally sound and sustainable.”
The concept of sustainable development contains three basic components or principles. First among these is the precautionary principle, whereby the state must anticipate, prevent and attack the cause of environmental degradation.[††] The Rio Declaration affirms the principle by stating that where ever “there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”[‡‡] Most of the cases of the 1990’s deal with the definition of the principle. In 1996, the Supreme Court[§§] stated that environmental measures, adopted by the State Government and the statutory authorities, must anticipate, prevent and attack the causes of environmental degradation. Following the definition provided in the Rio Declaration, the Court stated that where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. The Supreme Court has accepted the principle and applied it on several occasions. The SC of Pakistan in Shehla Zia v. WAPDA[***] commented: “The precautionary policy is to first consider the welfare and the safety of the human beings and the environment and then to pick up a policy and execute the plan which is more suited to obviate the possible dangers or make such alternate precautionary measures which may ensure safety. To stick to a particular plan on the basis of old studies or inconclusive research cannot be said to be a policy of prudence or precaution.”
The second component of the doctrine of sustainable development is the principle of ‘polluter pays’. The principle states that the polluter not only has an obligation to make good the loss but shall bear the cost of rehabilitating the environment to its original state.[†††] In operation, this principle is usually visible alongside the precautionary principle.
A Native American proverb states that “we do not inherit the planet from our ancestors but borrow it from our children”, this is the next significant component of sustainable development – the principle of intergenerational equity. The Brundtland Commission defined sustainable development as development ‘which meets the needs of the present without compromising the ability of the future generations to meet their own needs.’ The principle envisages that each generation should be required to conserve the diversity of the natural and cultural resource base, so that it does not unduly restrict the options available to future generations in solving their problems and satisfying their own values, and should also be entitled to diversity comparable to that enjoyed by previous generations. This principle is called “conservation of options.” Secondly, each generation should be required to maintain the quality of the planet so that it is passed on in no worse condition than that in which it was received, and should also be entitled to planetary quality comparable to that enjoyed by previous generations. This is the principle of “conservation of quality.” Thirdly, each generation should provide its members with equitable rights of access to the legacy of past generations and should conserve this access for future generations. This is the principle of “conservation of access.”[‡‡‡]
Another important aspect of the right to life is the application of public trust doctrine to protect and preserve public land. This doctrine serves two purposes: it mandates affirmative state action for effective management of resources and empowers the citizens to question ineffective management of natural resources. Public trust is being increasingly related to sustainable development, the precautionary principle and bio-diversity protection. When the Supreme Court has applied the public trust doctrine, it has considered it not only as an international law concept, but also as one which is well established in our domestic legal system. Its successful application in India shows that this doctrine can be used to remove difficulties in resolving tribal land disputes and cases concerning development projects planned by the government. In M.C. Mehta v. Kamal Nath and Others,[§§§] the court added that ‘[it] would be equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of ways for utilities, and strip mining of wetland filling on private lands in a state where governmental permits are required.’
It is apparent that environmental and human rights are inextricably linked. As we increasingly recognize the serious impact of a degraded environment on human health and well being, we are better placed to adjust our policies and cultural practices to reflect our enhanced understanding. As a result, we should be able to protect human rights and human dignity within its broader social, economic and cultural context by drawing from and contributing to those who are actively engaged in the environmental and public health arenas. This should also facilitate those who are working in the environmental and conservation fields to develop a better working relationship with those in the human rights arena. This will eventually lead to the articulation of a more integrated approach to dealing with socio-economic and environmental problems, encouraging the development of a sustainable model for the preservation of biological resources and natural ecosystems, for the use and enjoyment of both present and future generations.
[†] Atharva Veda (Bhumi Sukta).
[‡] Director General of the United Nations, World Health Organization (WHO)
[§] See, for example, A. Boyle and M. Anderson (eds.), Human Rights Approaches to Environmental Protection (Oxford, 1996).
[**] Margaret DeMerieux, “Deriving Environmental Rights from the European Convention for the Protection of Human Rights and Fundamental Freedoms” 21 (3) Oxford Journal of Legal Studies 521 (2001).
[††] Vellore Citizen’s Welfare Forum (1996) 5 SCC 647 at 658
[‡‡] Principle 15, Rio Declaration on Environment and Development (1992).
[§§] Vellore Citizen’s Welfare Forum (1996) 5 SCC 647.
[***] PLD 1994 SC 693.
[†††] Indian Council for Enviro-Legal Action v. Union of India (H-Acid Case), (1996) 3 SCC 212.
[‡‡‡] Edith B. Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (United Nations University, 1989)
[§§§] (1997) 1 SCC 388.