By Marsha Maghfira
Human’s intervention has a crucial role in the environment, regardless of the positive or negative impacts that it brings, it cannot be separated as human is the part of the ecosystem itself. Therefore, people need the regulation that stands for their rights to live in a healthy environment and can be relied on when infringement on this right by any party is occur. Concerning to international environmental law, there are many conventions and declarations that includes the human rights as part of its legal aim. The first time UN General Assembly recognized the relationship between the basic rights of people and the environment was in 1968 which subsequently declared in Principle 1 of the 1972 Stockholm Declaration and on the first principle of the 1992 Rio Declaration on Environment and Development which stated that human beings “[…] are entitled to a healthy and productive life in harmony with the nature.”1 The “entitled” word in this principle indicates that it is not binding. Despite the status of the declarations as “widely-accepted”, none of these provisions are explicitly shown human rights to a healthy environment as a binding rule and thus, this remains as a soft law.
Notwithstanding the human rights is not clearly accepted in terms of the healthy environment, the environmental degradation can be addressed as a violation of fundamental economic and social rights, thus, become legally binding. According to UN independent expert on human rights and the environment, John Knox (UN Office of High Commissioner for Human Rights), advised that instead of establishing a new binding document, it is better to implement the right of the healthy environment to the existing legal framework on human rights. It is reflected by the duties of the state to ensure people’s rights on health, food, and water which all can be threatened by the environmental harm.2 In order to seek the enforcement of these rights, other human rights provisions can be invoked even though it is not necessarily stands for the “healthy environment”. For example, the General Comment No. 15 (Right to Water) of the UN Committee on Economic, Social and Cultural Rights which affirms that everyone is entitled for safe and acceptable water for personal and domestic use.3 The other binding law that can be applied is on the European Convention on Human Rights (ECHR) which reflected on the right to life (Art 2), right to respect for private and family life (Art 8), right to access to impartial court (Art 6), and right to full enjoyment of property (Protocol Art. 1).
These alternative provisions are showing a fruitful effort, especially on the application of “right to respect for private and family life” of the ECHR. In the case Lopez Ostra v. Spain in 1994, Mrs. Ostra uses her right to litigate in court to claim that her right on private and family life has been breached by a private company which has been built on municipal land. This company uses certain chemicals that produced fumes and causes nuisance to Ostra family whose live in the area and as a consequence, they need to leave their home temporarily. Mrs. Ostra brought her case before the European Court of Human Rights after her case failed to be proceed in Spain, and it finally decided that the Article 8 of ECHR is indeed infringed as the state cannot balance between the economic well-being of the city and the fulfillment of applicant’s right on private and family life.4 This decision was a ground-breaking case since it was the first time that Article 8 was successfully applied in an environmental case.
Despite the alternative provisions mentioned above, there are two regional human rights treaties that explicitly expressed the recognition of rights to live in a healthy environment. The first one is under Article 24 of 1981 African Charter on Human and Peoples’ Rights stated that “all peoples shall have the right to a general satisfactory environment favorable to their development.”5While the second one is brought up on Article 11 of 1988 San Salvador Protocol to the American Convention on Human Rights which distinguish the right of individual on healthy environment and the positive obligation of states to protect, preserve, and improve the environment. Consequently, the failure of the state to perform the obligation will results on the enforceable right of action.6
In conclusion, although the human rights on healthy environment is only specified on two human rights treaties, there are several alternative provisions that can be used to claim this right such as the ECHR. The effectiveness of this act is then reflected and proven in the case of Lopez Ostra v. Spain (1994).
- The Rio Declaration on Environment and Development (1992), Principle 1.
- Statement by John H. Knox, Independent Expert on Human Rights and the Environment at “The Development of Environmental Human Rights”, 2014. Website: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=15274
- E/C.12/2002/11, 26 November 2002.
- Philippe Sands Jacqueline Peel, Principles of International Environmental Law (Cambridge: Cambridge University Press, 2012), 783.
- African (Banjul) Charter on Human and Peoples’ Rights (1981), Art. 24.
- Sands and Peel, Principles, 781.