Rio de Janeiro, 20 June 2012
It is a great pleasure to address this distinguished group of jurists today in the context of the World Congress on Justice, Governance and Law for Environmental Sustainability.
In my remarks today, I would like to underline the importance of human rights as an essential component of legal strategies for sustainable development, and to highlight specific human rights that are directly related to economic development, social protection and environmental protection.
The 1992 Rio Declaration states in its very first Principle that “human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.” The pursuit of inclusive, equitable and sustainable development can only take place when human beings are the central concern. Therefore, sustainable development is a process that takes place where human beings, and therefore human rights are of fundamental importance.
Another important document that frames this important Conference is the UN General Assembly’s resolution on Rio + 20 that envisages an outcome document that that should balance three interdependent and mutually reinforcing pillars of sustainable development: economic development, social development and environmental protection. Finally, I note that in the latest report of the Secretary-General on the Rule of Law to the General Assembly in 2012, he addressed the issue of sustainable development and emphasised that,
“Sustainable human development is facilitated by a strong rule of law. .…The United Nations supports the development of a holistic sustainable human development agenda that addresses the challenges related to inclusive growth, social protection and the environment. In such an agenda, the rule of law must play a critical role in ensuring equal protection and access to opportunities.”
Protection of human rights, therefore, is an essential element of sustainable development. If human rights are not observed in issues relating to sustainable development, then its component parts including economic development, social protection and environmental protection will all encounter serious obstacles and setbacks.
And, as I will attempt to illustrate, human rights strategies are a vital element of any successful legal strategy for environmental protection. People, after all, have standing, even in jurisdictions where the natural environment does not.
Perhaps no human right is closer to an essential component of sustainable development than the right to health and a healthy environment. The right to health is a human right recognized and protected by the International Covenant on Economic, Social and Cultural Rights. It also has been recognized in the jurisprudence of a number of national courts.
In a case in Argentina concerning environmental harm to fisheries and wildlife in a lagoon, the court concluded that, “The right to live in a healthy and balanced environment is a fundamental attribute of people.” In Costa Rica, the Supreme Court noted in a case before it that a healthy environment “constitutes a right that all citizens possess to live in an environment free of contamination. This is the basis of a just and productive society.”
A human right closely related to the right to health is the right to life. The right to life is protected by the International Covenant on Civil and Political Rights, as well as in national laws and constitutions. In India, the Supreme Court observed that the right to life “includes the right of enjoyment of pollution-free water and air for full enjoyment of life.” In Bangladesh, the court found that the right to life “encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water.” In Argentina, the court determined that “pollution arising from a coal burning industry, and particularly as a result of the cancerous substances that emanated from it, constituted a violation of the right to life.” And in Costa Rica, the court said that “without recognition of the right to health and to the environment the right to life would be severely limited.”
The right to life may also be thought of more broadly to encompass the right to life of communities and peoples, protected by the International Covenant on Economic, Social and Cultural Rights; and the UN Declaration on the Rights of Indigenous Peoples provides a number of important protections to the native lands and culturally specific way of life of indigenous peoples.
In national jurisprudence, the rights of communities and indigenous peoples have often found protection. In a case in Colombia that involved logging on the territory of indigenous peoples, the court found that “the devastation of forests alters their relation with the environment and endangers their lives since with the reduction or disappearance of the forest, the main source of animal protein, is also reduced or extinguished.” Similarly, in Costa Rica, the court concluded that “the devastation of the forest endangers indigenous peoples’ cultural and ethnic integrity and that these communities were likely to suffer future damages due to their cultural dependence on the tropical forest in which they dwell.”
The rights of communities other than indigenous peoples may also be protected by the courts. In a case in Ecuador involving the requested suspension of mining operations and road building in a national park, the court found that environmental degradation in national parks was “a threat to the environmental human rights of the inhabitants of the provinces of Loja and Zamora Chinchipe to have an area which ensures the natural and continuous provision of water, air, humidity, oxygenation and recreation.”
The right to privacy may also infringed by an environmental nuisance. In a case involving Spain, the European Court of Human Rights found a breach of the right to private life when the plaintiff and her daughter suffered serious health problems from the fumes of a tannery waste treatment plant which operated alongside the apartment building where they lived. The court added that severe environmental pollution may by an infringement of private live, without, however, seriously endangering health.
In Colombia, a local community sued an animal food industry because of the highly disagreeable fumes it emitted. The court concluded that the foul odours amounted to “an arbitrary intrusion in the privacy rights of the plaintiffs”, and ordered the company to suspend its emissions. At the international level, the right to privacy is protected by the International Covenant on Civil and Political Rights.
The right to development is highlighted as the third Principle in the Rio Declaration of 1992, which states that “the right to development must be fulfilled so as to equitably meet the developmental and environmental needs of present and future generations.” The right to development in terms of inter-generational equity was addressed at the World Conference on Human Rights held in Vienna in 1993. The Vienna Declaration states that “the right to development should be fulfilled so as to meet equitably the developmental and environmental needs of present and future generations.”
At the national level, there is also jurisprudence to support this inter-generational approach. In Peru, the Supreme Court decided to protect a mangrove area from coastal shrimp farming, reasoning that it was more profitable for the present and future development of the region to preserve and sustainably manage the mangroves rather than risk their depletion. In a case before the Constitutional Court of Guatemala, the court explained that the objective of environmental measures was to guarantee the right to health and the achievement of a standard of living that guarantees the survival of future generations.
Court decisions have also addressed the right to development more broadly in terms of limitations on property rights. In Nigeria, the court decision held that environmental degradation can give rise to a violation of human rights. There have been numerous cases in Nigeria concerning environmental degradation and human rights involving claims of destruction of agricultural land and pollution of rivers. In Chile, the court upheld a ban on logging and indicated that property rights were limited by the owners’ obligations that emanated from the forest’s “social function”. And the European Court of Human Rights has upheld an Irish court’s refusal to allow a property owner to build an industrial warehouse and office development in a zoned green belt, reasoning that the refusal was for a legitimate governmental aim- the protection of the environment.
Distinguished Justices, ladies and gentlemen,
I would now like to turn to human rights issues relating to sustainable development that concern process. Issues of human rights concerning process are often as important as the actual substance of what is decided. Consultative processes and decision-making must be inclusive, transparent and fair if they are to be perceived as credible.
Issues of sustainable development often involve decisions having important public policy considerations. The Covenant on Civil and Political Rights protects the right to freely participate in public affairs, either directly or through freely elected representatives; and related human rights including the rights to free speech, freedom of association and freedom of assembly are also protected by the Covenant.
However, inclusive also has a larger meaning and relates in particular to the right to equality and non-discrimination in participatory processes. The rights of minorities, indigenous peoples, women, small farmers, those living in poverty, and vulnerable groups should all be respected in participatory processes. The State should endeavour to have these groups included in participatory processes, and to take steps to facilitate their participation.
There may be some limitations to rights of participation, particularly in terms of standing to make judicial challenges. In a case before the European Court of Human Rights, where Swiss authorities had renewed an operating permit for a nuclear power plant, the court found that plaintiffs had not established a direct link between operating conditions of the plant and their physical integrity because they had failed to show that the plant’s operations exposed them personally to a danger that was serious, specific and imminent.
Transparent means that the processes for consultations and decision-making should be open to the public and well publicised, in particular to specific groups who are directly or indirectly concerned. A transparent process also means transparency in terms of available information. In a case in Peru, the plaintiff relied on a provision of the Peruvian Constitution called habeas data which allows citizens to seek relief against any acts or omissions by any administrative officer or person who violates or threatens their rights. The plaintiff’s action against the Peruvian mining authorities requesting information regarding technical aspects of the mining process was upheld by the court.
Consultations and decision-making processes that are fair mean essentially notice and an opportunity to be heard, to have the opportunity to present views and evidence relevant to the outcome of the decision-making process, and to have decisions based on the merits of the case as presented during the process and which are in the public interest.
Of course, there will sometimes be tensions between claims for sustainable development and property rights. It is a fundamental principle of human rights law that limitations on human rights start when the exercise of those rights adversely affect other human rights. Although the national cases that I have cited indicate that owners of property can only use and develop their property when it is deemed to be compatible with the public interest, what are the limitations to such action? And how can competing claims be resolved – including between individuals on the one hand, and the perceived public interest on the other?
How should the courts respond when the State takes measures, deemed to be in the public interest, to advance the interests of environmental protection, but such measures in practice adversely affect local communities or indigenous peoples?
In litigation before the courts concerning specific cases, what are the limitations on standing to bring such actions, given the broad impact decisions of private developers or public bodies may have?
The balancing of interests will often be dependent on the factual and legal circumstances of individual cases. Nevertheless I would like to underline that these issues will need to be addressed within the framework of respect for human rights and a strong commitment to the rule of law.
In the end, the answer will often lie in a determination of whether sufficient due diligence was exercised, fair process assured, and internationally guaranteed human rights respected. This is often a difficult task – falling squarely in the hands of legal professionals, as guardians of the rule of law. In this, and in all you do, I wish you well, and I thank you.