THE RIGHT TO LIVE IN AN UNPOLLUTED ENVIRONMENT

Emma O. Omuojine B.Sc (Nigeria), LL.M (Lagos), FNIVS, BL. Partner, Omuojine & Associates

200 Igbosere Road, Lagos diokpalaws@yahoo.com

1.0 INTRODUCTION

Until recently environmental protection, public health and human rights were

viewed as distinct areas of public policy by governmental institutions and

non-governmental organizations alike at both national and international

levels1. With increasing globalisation, the environmental and public health

impacts of rapid industrialization and urbanization in different regions of the

world are now being recognized as having major human rights implications by

the international community2. Indeed health has seemed to be the umbilical

cord that bridges the two fields of environmental protection and human

rights3. According to the Stockholm proclamation,

Man is both creature and moulder of his environment, which gives

him physical sustenance and affords him the opportunity for

intellectual, moral, social and spiritual growth… Both aspects of

man’s environment, the natural and the man-made are essential to

his well-being and to the enjoyment of basic human rights-even the

right to life itself4.

2.0 WHAT ARE HUMAN RIGHTS.

Human rights are international moral norms that aspire to protect all people

everywhere from severe political, legal, and social abuses. Examples of

1 A. Karim Ahmed, Environmental Protection, Public Health and Human Rights, An Integrated Assessment April 2003.2 Ibid3 Dinah Shelton; Human Rights, Health & Practice, 2002.4 Stockholm Declaration of the UN Conference on the Human Environment, 16 June 19721. UN Doc. A/CONF. 48/14/Rev.1 @ 3 (1973).

human rights are the right to freedom of religion, the right to a fair trial and

fair hearing when charged with a crime, the right not to be tortured and the

right to engage in political activity. These rights exist in morality and in law at

the national and international levels. They are addressed primarily to

governments, requiring compliance and enforcement. The main source of the

contemporary conception of human rights is the 1948 Universal Declaration

of Human Rights and the many human rights documents and treaties that

have followed in its wake5.

2.1 The Universal Declaration of Human Rights (UDHR) sets out a list of over

two dozen specific rights into six or more families namely security rights that

protect people against crime such as murder, massacre, torture and rape.

liberty rights that protect freedoms in areas such as belief, expression,

association, assembly, and movement, political rights that protects the liberty

to participate in politics through actions such as communicating, assembling,

protesting, voting and serving in public office; due process rights that protect

against abuses of the legal system such as imprisonment without trial, secret

trials and excessive punishments equality rights that guarantee equal

citizenship, equality before the law, and non-discrimination, and welfare

rights or economic and social rights that require provision of education to all

children and protection against severe poverty and starvation6. There is also

group rights contained in subsequent treaties which include protections of

ethnic groups against genocide and the ownership by countries of their

national territories and resources7.

3.0 ENVIRONMENT AND POLLUTION.

If we look at society from a historical perspective, we realise that protection

and preservation of the environment has been integral to the cultural and

religious ethos of most human communities8. Nature has been venerated by 5 Stanford Enccyclopedia of philosophy, June 11, 2003.6 Ibid7 Ibid8 Y.K.Sabharwal, Human Rights and the Environment. (Internet source)

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ancient Hindus, Creeks, Native Americans and other religions around the

world who worshipped all forms of nature believing that it emanated from the

God Spirit. Hinduism declared in its dictum “that the earth is our mother and

we are all her children. The ancient Greek worshipped Gaea or the earth

goddess9. Here in Nigeria the Ibos worshipped ‘Ala’ i.e. Land the Yoruba’s

‘Yemoja’ goddess of the sea, ‘Sango’, god of thunder etc. Islamic Law

regards man as having inherited “all the resources of life and nature” and

owing certain duties to God in using them10. In the Judeo – Christian tradition

God gave the earth to his people through Adam and Eve and their offspring as

an everlasting possession to take care of and pass from generation to

generation11.

3.1 However environment transcends the terra firma. Environment in broad terms

embraces both the natural and built surrounding; it covers practical

environment conservation work, protection of landscape, improving wildlife

habitats, researching global warming, combating water and air pollution,

promoting public enjoyment of and access to the countryside as well as the

preservation and restoration of buildings and monuments of architectural and

or historical importance, environmental education and interpretation and rural

or urban regeneration [Stephen Woollett]12.

There are three broad types of environmental pollution namely, Air /

Atmospheric pollution, Marine / Water pollution and Land pollution.

Environmental pollution on its part is the degradation by man of the

environment through the introduction into the environment of noxious and

harmful substances like grit, dust, smoke, fumes, carbon-monoxide, sulphur-

dioxide, ammonia, human waste, industrial and chemical waste, chemical

fertilizers and herbicides, emission, wind-borne particles, blaring of horns,

cacophonic noises from loud speakers et al13.

9 Ibid10 Op cit 811 Genesis 1:1-31, 17: 7-812 Justin Thornton & Silas Beckwith;”Environmental Law” Sweet & Maxwell, London. 199713 Smart N Uchegbu.”Environmental Management & Protection” Precision Publishers, Enugu.1998.

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3.2 Toxic compounds which are emitted into the air, water, soil and subsoil and

which are persistent and accumulate in living organisms are a factor in the

onset of a number of ailments in human beings. In particular, they account for

an increase in the number of tumors, in pathologies of the reproductive system

in respiratory diseases, in changes in behaviour, in permanent neurological

damage and in alterations to the immune and endocrine systems14. The high

level of environmental pollutants which people are exposed to is linked to

industrial production activities15.

3.3 However, non of these wastes is as noxious and damaging as those associated

with the oil and gas industry in view of their toxic properties of hydrocarbon

constituents which cause the gradual determination of ecological, aquatic and

animal life16. These environmental pollution often arise from upstream

operations in the form of blow-outs geothermal stream, gas flaring, and oil

spills including spills from down-stream operations of transporting petroleum

products via pipelines to storage depots spotted all over the land17.

3.4 It is obvious that the deleterious act of man in the name of industrialization

and development impact negatively on the environment from marine and

coastal life to the ecological balance of natural areas, the biosphere, plant and

animal life, from which man derives his sustenance for the following:

1) The earth is losing about a hundred species of various kinds of animal

and plant life daily due primarily to human pressures. In 1987 alone,

about 50million acres of species in rich forest disappeared.

2) Crude oil is being spilled into the oceans.

3) In Europe the population of forests showing damage resulting from

acid deposition increased from 8% in 1982 to 52% in 1998 and about a 14 The Right of Children To A Pollution Free Life Campaign. (Internet Sourced, 2004)15 ibid.16 17

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third of Europe’s forests are affected by acid pollutants. In Nigeria 1/3

of our Savannah vegetation has been lost to desertification in 40years

since independence. Similarly the mangrove and tropical vegetation

within the Niger-Delta is been lost through gas flaring, crude oil, and

acid pollutants18.

4) Human activity added the equivalent of 6.5 billion tones of carbon to

the atmosphere in 1987, in the form of carbon monoxide and other

green house gases, amounting to approximately 1.25 tones per person

on the planet.

5) About 3 million infants and children die yearly from diarrhea related

diseases while the physical and mental development of hundreds of

millions of others are impaired by repeated attacks of diarrhea due to

contaminated food and water

6) Millions of people of all ages suffer from debilitating intestinal

parasitic infections caused by pathogens in the soil, food or water and

from respiratory or other diseases caused or accentuated by pathogens

in the air19.

3.5 The widely acclaimed notion that pollution is a sine-qua-non and an

unavoidable consequence of industrialisation is fast giving way to the concept

of sustainable development. Consequently development need not necessarily

have destructive consequences on the environment if proper precautionary

measures are taken. All development planning must be infused with

environmental considerations, while environmental management could be

addressed from the perspective of development20.

18 There is a more devastating effect on the Niger-Delta where aside from acid rain there is the noxious effect of oil spillage and gas flaring.19 W.H.O Report “Our Planet Our Health” Report of the Commission on Health and the Environment. 1992. Onyido, J.C.: The Right To A Safe Environment, Finu Inv. Law, vol. 8 Nos1-2 p.61.20 Onyido J.C op cit. However, the problem often arises of reconciling government economic interest with the socio-cultural and human rights of the citizenry as currently being played out in the Niger-Delta.

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4.0 LINKAGES BETWEEN HUMAN RIGHTS AND ENVIRONMENT.

Human rights in the context of environment and sustainable development

recognize that for human communities to survive, they must have an adequate

and secure standard of living, they must be protected from harmful substances

and unsafe products, they must learn to conserve and equitably share natural

resources. Without these environmental and public health policies in place,

human rights for respect, dignity, equality, non-discrimination, participatory

governance and indeed for life itself cannot be achieved21.

4.1 Over the years, the international community has increased its awareness on

the relationship between environmental degradation and human rights abuses.

For several obvious reasons, it is clear that, poverty situations and human

rights abuses are worsened by environmental pollution and degradation.

4.2 First, the exhaustion of natural resources portends unemployment and

emigration to cities. Secondly, poor environmental conditions contribute to

the increase in diseases and to the speed of infectious diseases. Thirdly,

environmental degradation poses new problems such as environmental

refugees who suffer from significant economic socio-cultural and political

consequences and finally environmental degradation worsens existing

problems suffered by developing and developed countries e.g. Air pollution

accounts for between 2.7million and 3.0 million of deaths annually of which

90% are from developing countries22.

4.3 Environmental and human rights law have essential points in common that

enable creation of a field of cooperation between them. First, both disciplines

have deep social roots, granted that human rights law is more rooted within

the collective consciousness; the accelerated process of environmental

degradation is generating a new environmental consciousness. Also the

phenomena brought about by environmental degradation transcends political

21 A Karim Ahmed op. cit.22 a Sabharwal Y.K.(Justice) Human Rights and Environment. www.com 2004

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boundaries and it is of critical importance to the preservation of world peace

and security. Thirdly, both areas of law tend to universalise their object of

protection. Human Rights are presented as universal and environmental

protection appears as everyone’s responsibility23.

4.4 This brings us to the trends in international law regarding the emerging right

to a safe and pollution free environment and the protection thereof.

The changing content and concept of human rights has since expanded beyond

the neo-classical rights contained in the United Nations Charter24, the

Universal Declaration of Human Rights25 and the Economic Social and

Cultural (ECOSOC) Rights26 normally referred to as first and second

generation rights respectively to more modern rights provided for in the

Charter of Economic Rights and Duties of States27 and the Declaration on

the Establishment of a New International Economic Order28 on the

creation of a just and more equitable world, now referred to as third

generation rights.

4.5 In more recent times, the heightened world consciousness reflective of the

present need and necessity for the conservation of the worlds finite resources

and protection of the environment now subsumed under the term “sustainable

development” has quite “justifiably given rise to what has been described as

the forth generation of rights”29.

4.6 In a report based on a recent meeting of experts in December 2001 jointly

convened by the United Nations Commission on Human Rights the

UNHCHR and the United Nations Environment Programme, it was stated

23 Sabharwal loc cit.24 Articles 1,55,56,62,68 &7625 UN DOC. A/811 of 10/12/1948.26 UNGA Res. 2200(XX1) of 16/12/196627 UNGA Res. 3281(XX1X) OF 12/12/1974;28 UNGA Res. 1301(s-v1) of 1/05/1974.29 Oyebode, Akin (Prof); Un and Protection of Human Rights In Africa, in Int. Law & Politics: African perspective Bolabay Publ. 2003 p.199.

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that since the 1992 Earth Summit meeting in Rio de Janeiro, important

developments have occurred at the national and international levels that

“indicate a growing interconnectedness between the fields of human rights

and environmental protection. The overall context for these developments is

the concept of sustainable development, which requires that different societal

objectives be treated in an integrated manner” In addition, the experts noted in

their review of actions of international treaty bodies in the past decade shows

that:

…. a substantial body of case law and decisions has recognised the

violation of fundamental human rights as the cause, or result of

environmental degradation. A significant number of decisions at the

national and international levels have identified environmental harm

to individuals or communities, especially indigenous people, arising

as a result of violations of the rights to health, to life, to self-

determination, to food and water, to housing30.

4.7 Some have agreed to the contrary, that it is ill advised to designate as human

rights all rights, which do not pertain to individuals but to groups and

collectivities, in accordance with general usage and convention. Consequently

the new 3rd and 4th generation rights, like the right to economic development,

to protection of the environment, rights over certain resources as falling within

the common heritage of mankind and the right to a peaceful environment are

concepts which merely should constitute objectives of social policy or items

in a political programme31, but certainly not as legally enforceable claims32.

One of the very first references to any form of individual right to a healthy

environment can be found in principle 1 of the UN Declaration on the Human

Environment, which provides that;

30 A Karim Ahmed op cit p.1331 Vide Constitution of the FRN ch.1132 Robertson A.H & Merrills J.G: Human Rights In the World. Manchester University press, 1992 pg.255-259.

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“Man has the fundamental right to freedom, equality and adequate

conditions of life, in an environment of a quality that permits a life

of dignity and well being. And he bears a solemn responsibility to

protect and improve the environment for present and future

generations33.

4.8 Under customary international law, international law primarily regulates the

relationship between states inter se and not directly the individuals that make

up the state. The above principle however seeks to make out a case for an

internationally recognisable individual right to a safe environment34. Thus the

depletion of the ozone layer through gas flaring, the introduction of noxious

substances into the biosphere and the resultant global warming, the Chernobyl

disaster and the fall out thereof, the dumping of toxic waste as in the Koko

waste dump of 1987, nuclear waste dump on the sea bed or the territories of

unsuspecting states are few examples of acts which are now considered as

impinging on the environmental rights of the population35.

5.0 ENVIRONMENT, SUSTAINABLE DEVELOPMENT AND HUMAN

RIGHTS.

The importance of environmental protection and public health in the context

of sustainable development vis-à-vis matter of fundamental human rights was

first clearly enunciated in the 1987 Brundland Commission Report36. It

defined sustainable development in its overview chapter thus:

5.0.1 Humanity has ability to make development sustainable, to ensure that

it meets the need of the present without compromising the ability of

33 The UN Conference on the Human Environment, Stockholm Conference, 1972. See also Principle 1 Declaration of the UN Conference On Environment & Development Rio De Janeiro, 3-4 June 1992.34 Onyido J.C. op cit.35 Oyebode, Akin op cit. p.201.36 Officially drafted by the World Commission on Environment and Development which published its final report under the title, Our Common Future.

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future generations to meet their own needs. The concept of sustainable

development does imply limits – not absolute limits but limitations

imposed by the present state of technology and social organisation on

environmental resources and by the ability of the biosphere to absorb

the effects of human activities… The commission believes that

widespread poverty is no longer inevitable. Poverty is not only an evil

in itself, but sustainable development requires meeting the basic needs

of all and extending to all the opportunity to fulfill their aspirations for

a better life37.

5.1 In its proposed legal principles for environmental protection and sustainable

development, the Brundland Commission in annex 1 to its Report, stated a

set of General Principles Rights and Responsibilities as follows:

1. Fundamental Human Rights : All human beings have the

fundamental right to an environment adequate for their health and well

being

2. Inter generational Equity : States shall conserve and use the

environment and natural resources for the benefit of present and future

generations

3. Conservation and Sustainable Use: States shall maintain ecosystems

and ecological processes essential for the functioning of the biosphere,

shall preserve biological diversity, and shall observe the principle of

optimum sustainable yield in the use of living natural resources and

ecosystems.

4. Environmental Standards and Monitoring : States shall establish

adequate environmental protection standards and monitor changes in

and publish relevant data on environmental quality and resource use.

37 The seeming contradiction in this definition in relation to environmental protection constitutes the defence of the U.S Court in withholding its signature from the Kyoto Protocol.

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5. Prior Environmental Assessments : States shall make or require

environmental assessments of proposed activities which may

significantly affect the environment or use of natural resource38.

6. Prior Notification, Access and Due Process : States shall inform in a

timely manner all the persons likely to be significantly affected by a

planned activity and to grant them equal access and due process in

administrative and judicial proceedings.

7. Sustainable Development and Assistance: States shall ensure that

conservation is treated as an integral part of the planning and

implementation of development activities and provide assistance to

other states, especially to developing countries, in support of

environmental protection and sustainable development.

8. General Obligation to Co-operate : States shall co-operate in good

faith with other states in implementing the preceding rights and

obligations.

5.2 Since the initial publication of the Brundland Commission Report the world

population has grown from 5.0 billion in 1987 to more than 6.2 billion by

2002 and estimated to hit approximately 10 billion by 205039. With such an

unprecedented population explosion, immense strain is being placed on

human communities and natural ecosystems around the world. This is

especially true in developing countries where many of the inhabitants continue

to live in abject poverty; where they lack adequate shelter and food, clean

drinking water, unpolluted air and access to primary health care40.

5.3 Agenda 21 of the 1992 Earth Summit (UNCED)41 stated that “integration of

environment and development concerns and greater attention to them will lead

38 Environmental Impact Assessment Laws have been incorporated into most states legislations.39 Karim, Ahmed A. op. cit p.1440 Ibid; Art.25 of the UDHR is quite clearly linked to environmental protection, where clean water, clean air adequate shelter & food and primary health care no longer considered societal privileges but as universal human rights.41 United Nations Conference on Environment and Development, held in Rio de Janeiro in June 1992 where some 178 countries adopted Agenda 21.

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to the fulfillment of basic needs, improved living standards for all, better

protected and managed ecosystem and a safer, more prosperous future.

At the United Nations World Summit on Sustainable Development

(WSSD) Conference held in Johannesburg, South Africa in August /

September 2002, the meeting agreed to place human rights and ethnical

considerations within the purview of environmental protection and sustainable

development in the WSSD Plan of Implementation.

5.4 In a keynote address given by Mary Robinson42 she stated the link between

environment and human rights thus:

“The interdependence of human rights, environmental protection

and sustainable development has been described using the metaphor

of a triangle. Although sustainable development is the overarching

goal, it cannot be achieved without also respecting human rights and

protecting the environment. Each side is linked to, and mutually

supports each other, without one, effective realisation of the other

too is not possible… Environmentalists must come to realise that the

language and framework of human rights provides another tool in

their struggle to protect the environment. At the same time human

rights advocates need to look to the significant role that

environmental degradation in all its forms – has on the enjoyment of

individual rights not alone for those living today but for future

generations”

To me, this surmise of Mary Robinson encapsulates the nexus between environment,

sustainable development and human rights.

42 UN High Commissioner for Human Rights @ the workshop on human rights & the environment organized at the Civil Society Forum during the WSSD Conference on Sept. 1 2002 in S.A.

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6.0 APPROACHES TO ENVIRONMENTAL LAW AND HUMAN RIGHTS

In Resolution 45/94, the United Nations General Assembly recalled the

language of Stockholm43 stating that all individuals are entitled to live in an

environment adequate for their health and well being. The resolution called

for enhanced effort towards ensuring a better and healthier environment.

Suffice to say that Principle 1 of the Stockholm Declaration established a

foundation for linking human rights, health and environmental protection

stating that

“Man has the fundamental right to freedom, equality and adequate

conditions of life, in an environment of a quality that permits a life of

dignity and well being.”44

6.1 In the three decades since the Stockholm Conference, the links that were

established by these first declaratory statements have been formulated and

elaborated in various ways in international legal instruments and the decisions

of human rights bodies. To a great extent these instruments and decisions

involve taking a rights based approach to the topics, albeit with different

emphasis45.

6.2 The first approach, perhaps closest to the Stockholm Declaration is one where

environmental protection is described as a pre-condition to fulfilling human

rights standards and the enjoyment of internationally guaranteed human rights

especially the rights to life and health. Environmental protection is thus an

essential instrument in the effort to secure the effective universal enjoyment of

human rights46. Klaus Toepfer47 reflected this approach in his statement to the

57th Session of the Commission on Human Rights in 2001 when he said

43 Stockholm Declaration of the UN Conference on the Human Environment, 16 June 1972.44 Stockholm UNCHE op cit45 HEALTH AND human Right Working Paper Series No.1 2002 HR, Health & Environmental Protection: Linkages In Law & Practice.46 Op cit 47 Executive Director, UNEP

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6.2.1 “Human rights cannot be secured in a degraded or polluted

environment. The fundamental right to life is threatened by soil

degradation and deforestation and by exposures to toxic chemicals,

hazardous wastes and contaminated drinking water…

Environmental conditions clearly help to determine the extent to

which people enjoy their basic rights to life, health, adequate food

and housing, and traditional livelihood and culture. It is time to

recognize that those who pollute and destroy the natural

environment are not just committing a crime against nature, but are

violating human rights as well48.

6.3 The second rights-based approach highlights the presently existing human

rights as a route to environmental protection and states, “ the legal protection

of human rights is an effective means to achieving the ends of conservation

and environmental protection”. It views certain human rights as essential

elements to achieving environmental protection which has as a principal aim

the protection of human health49. This approach is well illustrated by the Rio

Declaration50 which formulates a link between human rights and

environmental protection largely in procedural terms, declaring in Principle

10 that access to information, public participation and effective judicial and

administrative proceedings, including redress and remedy, should be

guaranteed because “environmental issues are best handled with the

participation of all concerned citizens, at the relevant level” There exists

however, a raging debate on whether to recognize an actual and independent

right to a satisfactory environment as a legally enforceable right51.

6.4 The third approach and most recent is to deny the existence of any formal

connection between human rights and the environment. Rather it views the 48 loc cit 4549 loc cit 4550 1992 Rio de Janeiro Conference On Environment and Development.51 loc cit 45

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links as indivisible and inseparable and posits the right to a safe and healthy

environment as an independent substantive right52. Accordingly 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

being internationalised. However there are many who oppose this view

arguing that there is in fact a benefit to bringing the environmental law under

the ambit of human rights. The argument goes further that environmental law

has in many parts of the world, at both international and domestic level

suffered from the problem of standing; and because of this inherent barrier, it

is often difficult for individuals or groups to challenge infringements on

environmental law, treaties or directives53.

7.0 EXISTING HUMAN RIGHTS INSTRUMENTS AND

ENVIROMENTAL PROTECTION.

Most human right treaties were drafted and adopted before environmental

protection became a matter of international concern. As a result, there are few

references to environmental matters in international human rights instruments,

although the right to life and health are certainly included and some

formulations of the latter right make reference to environmental issues54.

The Universal Declaration of Human Rights, adopted and proclaimed by

the United Nations General Assembly in 1948, provides for the right to life,

liberty and security of persons in Article 3 and the right to health in Article 25.

7.1 The International Covenant on Economic, Social and Cultural Rights

(1CESCR)55 in Article 7b guarantees the right to safe and healthy conditions

of work and in Article 10 the right the right of every child and young person

to be free from work harmful to their health while Article 12 expressly calls 52 loc cit 4553 Salihavuel U.K. op. cit.54 op cit 45 p.6.55 December 16, 1966

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on state parties to take steps for “the improvement of all aspects of

environmental and industrial hygiene”. The Convention on the Rights of the

Child56 refers to aspects of environmental protection in respect to the child’s

right to health. Article 24 provides that states parties shall take appropriate

measures to combat disease and malnutrition “through the provision adequate

nutritious foods and clean drinking water, taking into consideration the

dangers and risks of environmental pollution57. ILO Convention No 169

concerning Indigenous and Tribal Peoples in Independent Countries58 contains

numerous references to the lands, resources and environment of indigenous

peoples59.

7.2 The right to a healthy environment is now to be found in a number of regional

human rights instruments around the world. Article 11 of the Additional

Protocol to the Inter-American Convention on Human Rights60, states that

1. Everyone shall have the right to live in a healthy environment

and to have access to basic public services,

2. The state parties shall promote the protection, preservation and

improvement of the environment.

7.3 In the absence of petition procedures pursuant to environmental treaties cases

concerning the impact of environmental harm on individuals and groups have

often been brought to international human rights bodies e.g. the Committee

on the Elimination of Discrimination Against Women (CEDAW) linked

environment to the right to health in its concluding observations on the State

Report of Romania, expressing its concern about the situation of the

environment, including industrial accidents, and their impact on women’s

health similarly in its concluding observations on the State Report submitted

56 NY, November 20,198957 op cit 45. p.6 Article 24(2)( C )58 Geneva, June 27, 1989.59 Articles 2, 6, 7,& 15.60 1994 also known as San Salvador Protocol.

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by Jordan, the CRC recommended that Jordan take all appropriate measures

including through international cooperation to prevent and combat the

damaging effects of environmental pollution and contamination of water

supplies on children and to strengthen procedures for inspection. Also the

CRC concluding observations on South Africa also expressed the

Committee’s “concern at the increase in environmental degradation,

especially as regards air pollution” and recommended that the state party

increase its effort to facilitate the implementation of sustainable development

programmes to prevent environmental degradation, especially as regards air

pollution. The European Convention on Human Rights has also been

involved in environmental matters. In Europe most of the victims invoke

either the right to information or the right to privacy guaranteed under the

Convention. Under the convention it has been recognised that pollution or

other environmental harm can result in a breach of family life.

8.0 The African Charter on Human and People’s Rights 1981 proclaims “a

right to a general satisfactory environment favourable to their environment”61.

8.1 However the indeterminate language of this provision hinders its application

first the charter’s declaration gives no indication as to how a “general

satisfactory environment” also the distinction between individual and people’s

right is not made clear62.

8.2 The Final Report of the Special Rapporteur on Prevention of Discrimination

and Protection of Minorities63 listed over 15 rights relative to environmental

quality among which include

a) The right to freedom from pollution, environmental degradations and

activities, which threaten life, health or livelihood.61 Art. 24(1)62 Acevedo, Marina T. “The Intersection of Human Rights and Environmental Protection In the European Court of Human Rights,” NVU Environmental Law Journal, vol. 8. 1999. pp.460-62.63 UN Doc E/CN4/Sub.2/1994/9, July 6 1994, Ketsentni Report.

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b) Protection and the preservation of the air, soil, water, flora and fauna,

and

c) Healthy food and water, a safe and healthy working environment64.

9.0 ENVIRONMENTAL INSTRUMENTS WITH PROVISIONS ON

HEALTH AND HUMAN RIGHTS

Concern for health is a constant theme in environmental agreements, indeed

one of the principal aims of environmental protection. A standard definition of

pollution, found in many legal texts is “the introduction by man, directly or

indirectly, of substance or energy into the environment resulting in deleterious

effects of such a nature as to endanger human health, harm living

resources…” etc65.

9.1 The preambles of European Community directives often state their aim as

being “to protect human health and the environment”

Similarly the Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal begins its preamble

“aware of the risk of damage to human health”66.

9.2 The Stockholm Declaration proclaims in paragraph 3 its concern about:

Growing evidence of man made harm in many regions of the earth: dangerous

levels of pollution in water, air, earth and living beings; major and undesirable

disturbances to the ecological balance of the biosphere, destruction and

depletion of irreplaceable resources, and gross deficiencies harmful to the

physical, mental and social health of the man, in the man-made environment,

particularly in the living and working environment.

9.3 Stockholm Principle 7 calls on states “to take all possible steps to prevent

64 op. Cit 45.65 Health & HR Working Paper Series Vol. 2002 op. cit66 Basel, March 22, 1989. 28 /LM 657.

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pollution of the seas by substances that are liable to create hazards to human

health.”

9.4 Article 1 of the Legal Principles for Environmental Protection and

Sustainable Development expressly links the three fields in declaring that

“All human beings have the fundamental right to an environment adequate for

their health and well-being67.

9.5 Principle 1 of Rio Declaration proclaims that human beings “are entitled to a

healthy and productive life in harmony with nature”68 and provides that states

should effectively cooperate to discourage or prevent the relocation and

transfer to other states of any activities and substances that inter alia, are

found to be harmful to human health69.

9.6 Procedural human rights are emphasized in environmental agreements for

example the right of individuals and non-governmental organisations to be

informed of environmental problems relevant to them, to have necessary

access to information, and to participate in the formulation and

implementation of decisions likely to affect their environment70. Many

international treaties adopted since the Stockholm Conference call upon states

to take specific measures to ensure that the public is adequately informed

about environmental risks, including health risks, posed by specific

activities71. In addition to the right to information, the public is also given the

rights to participate in decision-making and access to remedies for

environmental harm72.

67 Adopted by the Expert Group of the Brundland Commission. (WCED) 18-20 June, 1986 UN Doc. WLED/86/23/Add.1 (1986). Art.1 68 RIO 1992 Conf. CED69 Principle 14 1992 Rio Conf. Also The Institute de Detroit International a private but influential association at its Strasbourg session in Sept. 1997 noted that “Every Human beings has the right to live in a healthy environment”(Art.2)70 Arab Declaration on Environment & Devt. & Future Perspectives (Cairo Sept. 1991) A/46/632 cited in UN Doc. E/CN.4/Sub.2/1992/7, 20(affirming the right to information about environmental issues)71 See the Helsinki Conv. On Transboundary Effects of Industrial Accidents 31. ILM 1330(1992);72 See Rotterdam Convention on the Prior Informed consent.

19

9.7 Among the many international agreements utilizing procedural human rights

to achieve better environmental protection to protect human health, is the

Convention on Access to Information, Public Participation and Access to

Justice in Environmental Matters73. The Convention takes a very

comprehensive approach and explicitly links human rights and the

environment. The preamble to the convention forthrightly proclaims that

“every person has the right to live in an environment adequate to his or her

health and well-being, and the duty, both individually and in association with

others, to protect and improve the environment for the benefit of present and

future generations74.” It goes further to add that to be able to assert the right

and observe the duty, citizens must have access to information, be entitled to

participate in decision-making and have access to justice in environmental

matters75. Article 9 stipulates that parties should establish a review procedure

before a Court of Law or other independent and impartial body for any

persons who consider that their request for information has not been properly

addressed.

9.9 Article 19 of the Aarhus Convention opens the door to accession by other

states, provided that they are members of the United Nations and that the

accession is approved by the meeting of the parties of the Convention.

9.10 The Protocol on Water and Health to the 1992 Helsinki Water Courses

Convention76 adopted in London on June 17, 1999, contains the most

extensive treaty provisions indicating the linkages among the three topics, to

wit, pollution, environment and health. The objective of that protocol is to

73 Prior informed consent Procedure for certain Hazardous Chemicals and Pesticides in International Trade Sept.10, 1998. Emu T, 998:26.74 Art.23, The Cartagena Protocol on Biosafety to the convention on Biological Diversity (Mounted January 29, 2000) 39 KM 102775 Principle 10 Rio Declaration on Environmental & Devt. 1992.76 Aarhus, June 25, 1998 signed by 35 states & EC The Conv. Came into force on 30/10/01Protocol on water and Health to the 1992 Convention on the Protection and Use of Transboundary Water Courses and International Lakes (London June 17, 1999)

20

promote the protection of human, health and well being at all appropriate

levels, nationally as well as in transboundary and international contexts. The

convention notes from the outset that water is essential to sustain life and that

water quality and quantity must be assured to meet basic human needs77, a

prerequisite both for improved health and for sustainable development. The

general provisions include an obligation for parties to take all appropriate

measures to ensure adequate supplies of wholesome drinking water free from

dangers to human health78.

9.11 The Conference on Security and Co-operation in Europe (CSCE) on the

environment in Sofia in 1989 reaffirmed respect for the right of individuals,

groups and organisations concerned with the environment to express freely

their views, to associate with others and assemble peacefully, to obtain and

distribute relevant information and to participate in public debates on

environmental issues79. Also the Convention on Environmental Impact

Assessment in a transboundary context, 1991 calls for the “establishment of

an environmental impact assessment procedure that permits public

participation” in certain circumstances80.

10.0 SUSTAINABLE DEVELOPMENT AND HUMAN RIGHTS

This brings us to the inevitable question of the relationship between the

protection of the environment and the need for economic development. The

developing countries and states that are currently attempting to industrialise,

face the problem that to do so in an environmental safe way is very expensive

and the resources that can be devoted to this are extremely limited. Principle

8 of the Stockholm Declaration of the United Nations Conference on

Human Environment of 1972 emphasised that “economic and social

development is essential for ensuring a favourable living and working

environment for man and for creating conditions on earth that are necessary

77 Heal the HR Working Paper Serid No. 1 op. cit p.10.78 ibid.79 CSCE/SEM.36 Malcom N;”Shaw International Law” Cambridge University Press 5th Edition pp.756-75780 ibid.

21

for the improvement of the quality of life” while Principle 21 stressed the

sovereign right of states to exploit their own resources.

10.1 Principle 2 of the Rio Declaration adopted at the UNCED 1992 noted that

states have the “sovereign right to exploit their own resources pursuant to their

own environmental and developmental policies” while Principle 3, states that

“the right to development must be fulfilled so as to equitably meet

developmental and environmental needs of present and future generations.”

The correct balance between development and environmental protection is

now one of the main challenges facing the international community and

reflects the competing interests posed by the principle of state sovereignty on

the one hand and the need for international cooperation on the other. It also

raises the issue as to how far one takes into account the legacy for generation

yet unborn of activities conducted at-present time. And also deferring to the

human rights of individuals and peoples while exploiting natural resources

meant for their economic well-being. To me this situation is a classical

example of ‘agony of choice.’

10.2 The Energy Charter Treaty81 note in Article 19 that contracting parties

“shall strive to minimize in an economically efficient manner harmful

environmental impacts” parties are to “strive to take precautionary measures

to prevent or minimize environmental degradation” and agree that the polluter

should in principle, bear the cost of pollution, including Transboundary

pollution, with due regard to the public interest…”82

10.3 In the nineties, the international community adopted a series of agreements

and conventions that provide regulatory procedures and guidelines to control

the global export and shipment of toxic substances and hazardous wastes. In

1995, the International Code of Conduct on the Distribution and Use of 81 Signed at Lisbon in 1994 by OECD & Eastern European & CIS states, 33 ILM, 1995 P.360.82 Malcom Shaw op. cit. One potentially innovative method for linking economic underdevelopment and protection of environment is the “debt for nature swaps “ arrangement thereby reducing debt & preserving the environment.

22

Pesticides was adopted by the Food and Agriculture Organisation (FAO)

followed in 1997 by the enactment of the London Codelines for the Exchange

of information on Chemicals in International Trade by UNEP83.

10.4 In 1998 the Rotterdam Convention on Prior Information (PIC) consent

was adopted to help control the importation of banned or severely restricted

products into developing countries. Under PIC, officials in importing

countries must be informed by the exporters about the toxicological

characteristics and regulatory states of potentially hazardous chemicals before

shipment of the products to their region.

10.5 Over one hundred countries have banned or severely restricted, the import of

hazardous materials. However, a number of developing countries especially in

Asia and Africa have found an economic niche in importing hazardous wastes

from developed nations. The Basel Convention on the Control of

Transboundary movement of Hazardous wastes and their Disposal offers a

system by which to regulate transport and disposal of such wastes but also

encourages waste minimization and the implementation of sound

environmental management policy. A class of toxic chemicals, known as

Persistent Organic Pollutants (POPs) is made up of long – lasting, non-

biodegradable organic compounds that bioconcentrate in the food chain,

posing serious health risks to human populations. Under the Stockholm on

Persistent Organic Pollutants (POPs Treaty) adopted in December 2000 in

Johannesburg, South Africa, the following chemicals, namely, poly-chloriated

biphenyls (PCBs), dioxins and furans, aldrin, DDT, endrin, chlordane,

hexachorobenzene, mirex, toxaphene and heptachlor are to be gradually

phased out.

10.6 To preserve and equitably share the generic resource base of earth’s biological

diversity, the international community signed the 1992 UNCED in Rio de

83 Originally 1989 international agreement.

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Janeiro. The biodiversity agreement describes its main objective as “… the

conservation of biological diversity, the sustainable use of its components and

the fair and equitable sharing of the benefits arising out of the utilization of

generic resources, including by appropriate access to generic resources and by

appropriate transfer of relevant technologies…”

10.7 Global concerns about the rapid rate of loss and extinction of biological

species led to the adoption of the Convention on International Trade in

Endangered Species of Wild Fauna and Flora (CITES) in March 1973.

Trade in specimens of all species threatened with extinction must be subjected

to particularly strict regulation in order not to endanger further their survival

and must only be authorised in exptional circumstances.

10.8 The growing worldwide consensus amongst researchers, scientists and policy

makers that earth’s protective stratospheric ozone was being depleted led to

the adoption in 1987 of the landmark Montreal Protocol on substances that

Deplete the Ozone Layer84. The Montreal Protocol has led to a worldwide

phase out of stratospheric ozone-depleting substances, including

chlorofluorocarbons (CFCs) and other halocarbon compounds.

10.9 The impact of global warming on human communities as a result of global

climatic change has several short-term and long-term local and regional

environmental consequences. Based on these concerns the international

community in 1998 drafted the Kyoto Protocol to the United Nations

Framework Convention on Climatic Change. The Kyoto Protocol calls on

ratifying states to reduce atmospheric emissions of greenhouse gases linked to

global warming through nationally based emission-reductions Programme and

the creation of international mechanisms for providing technical assistance to

developing countries85.

84 The 1987 Protocol has been amended severally in the 1990’s85 The ratification of the Kyoto Protocol in Dec. 2004, 7 years after by China paved the way to its being a binding treaty

24

10.10 Following the Chernobyl disaster and the failure of the USSR to provide

immediate information, the Vienna Convention on Early Notification of a

Nuclear Accident, 1986 was rapidly adopted, under the auspices of the

IAEA. The Convention provides that in the event of a nuclear accident, the

relevant state shall forthwith notify, directly or through the International

Atomic Energy Agency those states, which are or may be physically affected,

of the nuclear accident, its nature, the time of its occurrence and its exact

location. Such states must also be promptly provided with information

relevant to minimizing the radiological consequences86.

10.11 The increasing problem of the disposal of toxic and hazardous wastes and the

practice of dumping in the Third World with its attendant severe health risks

has prompted international action. The 1972 Oslo Convention for the

Prevention of Marine Pollution by Dumping from Ships and Aircraft

makes provision for a ban on the dumping of certain substances and for

controls to be placed on the dumping of others*. Also the London

Convention on the Prevention of Marine Pollution by Dumping of Wastes

and other matter, 1972 prohibits the dumping of wastes except as provided

in the Convention itself, which is strictly controlled.

10.12 The Organisation of African Unity (OAU) in 1988 adopted a resolution

proclaiming the dumping of nuclear and industrial wastes in Africa to be a

crime against Africa and its people**. In 1991 the OAU adopted the Bamako

Convention on the Ban of the Import into Africa and the Control of

Transboundary Movement and Management of Hazardous Wastes

within Africa87, under which parties are to prohibit the import of all

hazardous wastes.

86 Shaw Malcom N. op. cit p.798 (See Article 2 & 5)*Listed in Annexes I & ii of the Convention8730 ILM, 1991 P.773 Shaw Malcom N. op. cit.

25

11.0 JUDICIAL INTERVENTIONS

Due to the absence of a right to environmental protection in the 1948 UNDHR

environmental issues have been raised incidentally, through the assertion of

protected rights, such rights that protect the integrity of persons and their

immediate surroundings. Consequently environmental claims brought before

the regional human rights convention controlling organs (especially the

European HR Commission and later the European Court of Human

Rights) have been formulated as violations of

1) The right to life.

2) The right to respect for privacy and family life.

3) The right to the peaceful enjoyment of property and

4) The right to obtain information concerning risk to health and safety88.

11.1 Subsequently after the 1972 Stockholm Convention and following from the

developments that are taking place through the intervention of national and

regional Courts in various parts of the world, the Courts are moving the right

to a healthy environment up the hierarchy of human rights by recognizing it as

a fundamental right89.

11.2 Though the European Convention on Human Rights does not directly address

the question of whether an individual has a right to a decent environment,

nonetheless the convention has been used by litigants as the basis of a number

of claims to environmental quality. In the landmark decision in the case of

Guerra & others V Italy90, the ECHR held that Italy failed to respect the

applicant’s right to privacy and family life in breach of Article 8 of ECHR, by

not providing essential information which would have enabled the applicants

to assess the environmental risks of living in proximity to a chemical plant.

88 Article 8(1) of the European Convention on Human Rights & Fundamental Freedoms provides that “everyone has the right to respect for his private, his home and his correspondence”** A fall out from the Nigeria’s Koko Toxic Waste Dumping experience.89 Aceredo Mariana J. “The Intersection of Human Rights and Environmental Protection In the European Court of Human Right”. NYU Environmental Law Journal p.464.90 (1998) 26 EHRR 357

26

11.3 In the Guerra Case, the applicants lived only 1 kilometer from a chemical

plant, which was discharging large quantities of inflammable gases into the

environment. It was argued that the gases could cause chemical reactions

leading to the release of highly toxic substances. Various accidents had

occurred in the past including an accident in 1976 when 150 people were

hospitalized with serious arsenic poisoning. The applicants complained that

the ‘Seveso’ Directive on control of major Accident Hazards, requiring the

local authorities to advise the local population as to the relevant hazards from

the plant and the procedures and plans in place to safeguard the local

population, had not been complied with. The significance of the Guerra

decision lies in the courts’ expansive interpretation of the language of Article

8. in equating the right to receive information relating to the environment with

the applicants’ quality life; the Court implicitly found that a right to live in an

environment of quality be derived from the basic civil and political rights set

forth in the Convention91. The implication of the court’s approach in Guerra

is far reaching and unprecedented as it asserts that existing human rights

instruments may be interpreted to address environmental issues not

anticipated when these instruments were formulated.

11.4 The pre-Guerra jurisprudence under the European Convention on Human

Rights was not absolute in this assertion in relation to environmental pollution

and degradation. The first environmental decision under the Convention was

handed down in X&Y .V. Federal Republic of Germany92 where the

Commission denied the admissibility of an application filed by members of an

environmental protection group seeking an injunction against the use of

marshland property for military purposes. The applicants alleged that the

proximity of military activity to the villages in which they lived violated their

human rights, viz, the right to life, right to freedom from torture, and right to

91 Alceredo op. cit. p.43892 App. No. 7407/76, 15 ECHR Dec. & Rep 161(1976)

27

liberty under Article 2, 3, & 5 of the Convention. The Commission rejected

the applicants’ petition on the grounds that the Convention did not expressly

provide for a right to nature preservation. Accordingly, the Commission held

that the petition was incompatible with the rationae materiae of the

Convention as stated in Article 27(2)93.

11.5 Again in X .V. Federal Republic of Germany, the Commission denied

standing to an Association of environmental petitioners who protested the

construction of a nuclear power plant, requiring the Association to establish a

“legal interest of their own” distinct from that of its members in order to attain

locus standi94.

11.6 Realizing that without express environmental rights, direct claims against the

State would fail due to the Commission’s implicit deference to the contracting

parties actions, under the margin of appreciation doctrine, applicants

asserting environmental claims soon began alleging that environmental harm

interfered with their existing private property rights i.e. the right to privacy

and the right to the enjoyment of one’s own possessions as set forth in Article

8 of the convention.

11.7 In Arrondelle V United Kingdom, the Commission declared admissible a

complaint alleging that noise pollution interfered with the applicants’ right to

a fair and impartial trial, right to privacy, and the right to the enjoyment of

one’s own possessions under the Convention95. In the case the applicant,

adjacent to an airport and major roadway, petitioned the Commission after the

local District Council repeatedly refused to change the zoning use of the house

to light industrial commercial use. Citing the Department of the

Environment’s inspection report, which found that the location of the

93 Art 27(2) provides that “The Commission shall consider inadmissible any petition submitted under Art 25 which it considers incompatible with the provisions of the present Convention, manifestly ill-founded, or an abuse of the right of petition”94 App. No. 74007/76 Opcit. @ page 27095 (1) App. No. 7889/77, 5 EHRR 118,119(1982) IBID.

28

applicant’s home subjected her to “intolerable stress”, the Commission

indicated “a willingness for the first time to recognise the link between noise

pollution and human rights96.

11.8 However in S v France97, the Commission declared inadmissible a complaint

alleging that the construction of a nuclear power plant in the applicants

neighbourhood violated the applicant’s right to privacy. In assessing the

applicant’s allegation under Article 1 of Protocol 1, the Commission relied

on a balancing test set forth in Sporrong & Jonnroth, which requires the

court “to determine whether a fair balance had been struck between the

demands of the interest of the Community and the requirements of the

protection of the individual’s fundamental rights98.

11.9 Powell & Rayner V. UK99 was the first case where the court explicitly

recognised the interrelationship of the environment and quality of life100. Here the

court found that noise pollution from Heathrow Airport interfered with the local

residents’ quality of life i.e. enjoyment of their home and in analysing the

applicants’ claim, the court applied a balancing test to environmental issues,

weighing the competing interests of the individual against the community as a

whole to determine whether the interference was excused or justified and to see

whether the state had a positive duty to secure the applicants’ right to privacy.

The court also opined that in both contexts the state enjoys a certain margin of

appreciation in determining the steps to be taken to ensure compliance with the

Convention101. The court held that the interference of the applicants’ rights was

justified under both policy and regulatory analytic approaches. The airport was

necessary for the economic well being of the community and the state had enacted

reasonable and appropriate measures to comply with international aviation

96 Op. cit97 App. No. 13728/88 65 EHRR Dec. & Rep.250,258,260 (1990)98 Aceredo, Mariana T. loc. Cit. p. 46999 12 Eur. Ct. H.R.355 (Ser.A) (1990)100 Ibid. @ 363, 368.101 Aceredo op cit @ p.474.

29

standards to minimize the noise pollution. “Significantly the judgement of the

court in this case illustrates the courts’ reluctance to allow the environmental

concerns of an individual to take precedence over the broader economic concerns

of the wider community102.”

11.10 In a more recent case however Hatton & others V. UK103 a Chamber of

European Court found that the noise from increased flights at Heathrow

Airport between 4am and 6am violated rights of the applicants to respect for

their home and family life because the sleep deprivation this caused raised

health concerns. The Court therefore opined that in balancing individual rights

and the general welfare, the state cannot simply refer to the economic well-

being of the country “in particularly sensitive field of environmental

protection”. Instead, the state is required to minimize the interference by

trying to find alternative solutions and by generally seeking to achieve their

aims to human rights. The Court also found a violation of Article 13 being

right to remedy and awarded compensation to the applicants. In a separate

opinion Judge Costa speaking directly of “the right to a healthy environment”

noting that since the beginning of the 1970’s, the world has become

increasingly aware of the importance of environmental issues and of their

influence on peoples lives104.”

11.11 In Lopez Ostra V Spain105 the applicant who resided in the vicinity of a

privately owned and operated solid and liquid waste treatment plant,

petitioned the Court alleging that the odour and noise emissions from the

odour and noise emissions from the waste facility were causing health

problems and that she had suffered a violation of her right to privacy and

freedom from torture. The applicant supported these allegations by

102 Also see Kharturn & Otrs V. UK (unreported,1 July 1998) cited in Susan holf etal, Principles of Environmental Law, 3rd Ecl. 2002. P. 478103 2nd October 2001104 Shelton, Dinah, Human Rights, Health & Environmental Protection. Linkages In Law and Practice, H& HR Working Paper series NO. 1, 2002. P.19.105 (1995) 20 EHRR 277.

30

establishing a nexus between adverse effects on her health and the unregulated

operation of the facility. The Court found that as the emission exceeded

permitted limits they could endanger the health of citizens living nearby and

stated that “severe environmental pollution may affect individuals’ well-being

and prevent them from enjoying their private and family life adversely. The

court found in favour of the applicant and awarded compensation in the sum

of four million pesetas. In finding for the applicant, the court employed the

fair balance test set forth in Article 8(2) and examined whether the local

authorities struck ‘a fair balance between the interest of the town’s economic

well-being and the applicant’s effective enjoyment of her right to respect for

her home and her private and family life106. Also the court found that the

Spanish authorities had failed to enforce domestic law by enabling the facility

to operate without a license and without compliance with the appropriate

national standards. This amounted to a breach of its affirmative duty to

ensure the respect for home and private life under Article 8(1)107.

11.12 Lopez Ostra represents a significant turning point for environmental claims

under the Convention regime. It was the first case in which “the organs of the

European Convention found a breach of the convention as a consequence of

environmental harm” and awarded compensatory damages as such because

“the applicant sustained damage due to Spain’s violation under Article 8, for

the depreciation of her old flat and the expense and inconvenience of moving,

and non-pecuniary damage for distress and anxiety at the situation and in

addition to the nuisance caused by the fumes, noise and smells108.” The

finding is also extra-ordinary because it marked a departure from the general

practice envisaged by the Convention’s drafters, which presumed that

106 Ibid @ 297; Contrast with Balmer – Schafroth & Otrs V. Switzerland App. No. 2110/93, 25EHRR, 598, 603(1997)107 The test to be applied is not whether the natural authority fulfilled the functions assigned to it by domestic Law but whether the nation / countries took measures necessary for protecting the applicants rights 108 Op cit

31

determination of damages were matters to be remanded to the national judicial

bodies of the Contracting Parties109.

12.0 NATIONAL ENVIRONMENTAL JURISPUDENCE AND HUMAN

RIGHTS

More than one hundred Constitutions in the world guarantee a right to clean

and healthy environment, impose a duty on the State to prevent environmental

harm, or mention the protection of the environment or natural resources110.

Ninety-two Constitutions impose a duty on the government to prevent harm to

the environment111. The constitutional rights granted are increasingly being

enforced by courts. In India for example, a series of judgments between 1996

and 2000 responded to health concerns caused by industrial pollution in

Delhi112.

12.1 In the case of Charan Lal Sahu V Union of India the Supreme Court of

India interpreted the right to life guaranteed by Article 21 of the Indian

Constitution to include the right to a wholesome environment. In the case of

Sub hash Kumar V State of Bihar113 the court observed that the “right to life

guaranteed by Article 21 of the Constitution includes the right of enjoyment of

pollution – free water and air for full enjoyment of life”.

12.2 South African courts also have deemed the right to environment to be

justiceable. In Argentina, the right is deemed a subjective right entitling any

person to initiate an action for environmental protection. The courts have held

that “the right to live in a healthy and balanced environment is a fundamental

attribute of the people. Any aggression to the environment ends up becoming

109 Aceredo loc cit.110 Shelton, Dinah, Human Rights, Health & Environmental Protection: Linkages In Law & Practice; Health and Human Rights Working Paper Series No. 1 2002.111 Ibid.112 Ibid. 4. AIR 1990 SC 1480(1991)113 AIR 1991 SC 420, 1991(1) SCC 598

32

a threat to life itself and to the psychological and physical integrity of the

person”114. Colombia also recognised the enforceability of the right to

environment. The Colombian court held in Fundepublico V Mayor of

Bugalagrade & Otrs115 that “it should be recognised that a healthy

environment is a sine qua non condition for life itself and that no right could

be exercised in a deeply altered environment”. In Costa Rica, the court stated

that the right to health and to the environment is necessary to ensure that the

right to life is fully enjoyed116.

12.3 In Nigeria, however, environmental protection from pollution and degradation

being part of state policy representing merely the fundamental objectives

and directive principles of state policy is non justiceable117 Section 20 of the

1999 Constitution outlines provision for the state to protect and improve the

environment and safe guard the water, air and land, forest and wildlife of

Nigeria. An environmental right has been defined as “the right of individuals

and peoples to an ecological sound environment and sustainable management

of natural resources conducive to sustainable development”

Section 33(1) of the Constitution states that “every person has a right to life

and no one shall be deprived intentionally of his life”. It would seem that this

right protects the right of citizens against environmental degradation for as

many have argued the combined effect of section 33(1) with section 20

confirm a right to a healthy environment. The question, which presents itself,

is the threat to life which environmental pollution portends for the Nigerian

citizenry. Is it logical to ascribe to our citizens the right to life and the dignity

114 Irazu Margarita V Copetro S.A www. Eldial. Com.115 Juzgado Primeno Superior, Interlocutorio No. 032 Tulua, 19th Dec. 1991. www.com116 Prsidente de la sociede Martene S.A V Municipalidad de Tibas, sala Constitutional de la corte Supreme de justica. Decision No. 691894 of 251194.117 In Archbishop Olubunmi Okogie V AG Lagos State(1981) IN.C.L.R p.218, it was held that the provisions contained in Ch. 11 of the 1979 Constitution were subservient to the fundamental rights provisions contained in Ch. IV & that specific laws for the enforcement of Ch. II must be enacted by the legislature.

33

of human person118, which is suspect when occasioned by environmental

degradation?119 The fight for survival which the Peoples of the Niger –Delta

are currently involved in against the devastating effect of oil and gas pollution

is one of self preservation and an attempt to protect their right to life and

dignity120.

12.4 Presently it appears that the common mode of seeking legal redress in cases of

environmental pollution and degradation in Nigeria is to claim under

Common Law or any legislation in force121 as at the time of pollution via the

torts of negligence, nuisance or under the rule in Rylands V Fletcher.

It is however submitted that where environmental litigations have succeeded

on tortuous claims, the courts have been rather economical in awarding

damages commensurate with the offence and the damage to the

environment122. The attitude of the courts has always been to shield polluters

from damaging litigation where the utility of the enterprise involved is

sensitive and vital to the growth and development of the nation123.

Compensation payable in the event of a successful claim has to a large extent

been negligible partly due to the failure to accord the right to a safe and decent

environment the status it deserves in law and in fact124.

12.5 In Umudje & Anor. V. Shell Petroleum Development Company (Nig.)

Limited125, the Appellant claimed 50,000 pounds as fair and reasonable

compensation for the damage done to the farmland, fishing ponds and lakes

118 Sect. 34 1999 Const. Of Nigeria.119 Onyido J.C., “The Right To Safe Environment” Journal of Finance & Investment Law Vol. 8. Nos. 1-2, 2004, p.6c.120 Vide attached appendix for Account.121 E.g. Land Use Act (CAP 200) LFN 1990, Petroleum Act(CAP350) LFN 1990, Oil Pipe Lines Act (CAP 338) LFN 1990 Mineral Act(CAP 226)LFN 190.122 See (i) Seismograph Service (Nigeria) Ltd. V Ogbeni (1976) 4SC85 (ii) Shell Petroleum Devt. Of Nig. Ltd. V Chief Otoko & Otrs, 6NWLR(P.159, 693) (iii) EIF Nig. Ltd. V Opera Sllo & Otrs (1994) 6NWLR(P.350) 258SC.123 Onyido, J. C. Op cit. P.67.124 Ibid. @ 68125 (1976) 4SC85.

34

against the Respondents. The Trial Court awarded 7000 pounds as damages.

While the Supreme Court on appeal slashed the award to 6,000 pounds.

12.6 In Seismograph Services (Nigeria) Limited V Ogbeni126, the Respondent

claimed from the Appellants the sum of 1,000 pounds as special and general

damages for carrying out oil exploration exercise which damaged his (the

Respondent’s) building. The Trial Court awarded 350 pounds as damages.

The Supreme Court upturned the judgement of the Court of first instance

saying that the Respondent was not entitled to damages altogether.

12.7 Prior to the Koko Dump Incident in 1987 there was limited consciousness on

the protection of the environment and to all intents and purposes there where no

proper environmental protection laws in Nigeria127. However after the Koko

incident128 the Federal Government swiftly enacted a number of laws on

environmental protection some of which are:

1. Federal Environmental Protection Agency (FEPA) Act (1991).

2. Environmental Impact Assessment (EIA) Act. (1992).

3. Hazardous Waste Criminal Provision Act (1988) and

4. The Pollution Abatement and Facilities Generating Regulation Act

(1991). Section 19 of the Act outlines restrictions on release of toxic

substances into Nigeria’s ecosystem, the pollution maintaining

requirements for industries, the strategies for waste reductions,

requirements for environmental audits and penalties for contravention.

12.8 It follows therefore and flowing from Sections 20 and 33 of the 1999 Nigerian

Constitution that it is the intendment of the law to guaranty a healthy state and

126 1976 4SC85127 The Public Health Act 1917, Mineral Act 1969, the Petroleum Act, 1969, Publication Health Act 1970, the Oil in Navigable Waters Act, 1968, the Endangered Species Act 1986 e.t.c. were all aimed at maintaining a healthy environment but was inadequate to the extent that they did not fully appreciate the magnitude of the risk and damage to which their violation posed to the society and mankind in the short & long term.128 18,000 drum of hazardous toxic wastes were illegally imported into Nigeria from Italy, stored at the Koko Port under the management of Sunday Nana.

35

viable environment that is conducive to a sustainable growth and

development. The right of the citizenry to a healthy and pollution free

environment is reinforced by the obligations assumed by Nigeria under

numerous international instruments especially the African Charter on

Human and People’s Rights. By the authority of Abacha V Gani

Fawehinmi129, Article 24 of the African Charter On Human and Peoples

Rights can be invoked by any Nigerian citizen who alleges an infraction - of

his fundamental rights and the enforcement of his right to a satisfactionary

healthy and pollution free environment.

12.9 In August 1990, the Ogoni elders of the Niger – Delta signed and proclaimed

the Ogoni Bill of Rights which called for the “political control of Ogoni

affairs by Ogoni people, control and use of Ogoni economic resources for

Ogoni development, adequate and direct representation as the right for Ogoni

people in all Nigerian national institutions and the right to protect the Ogoni

environment and ecology from further degradation130.

12.10 During the 1990’s the Courts repeatedly dealt with human rights and the

environment question in various oil related litigations. One such case is the

Ken Saro – Wiwa, President of MOSOP131 and 8 others132 where the Ogoni

people claimed that excessive crude oil exploration activities had destroyed

agricultural land and resultant oil spillage had destroyed a lot of flora and

fauna in Ogoni Land. That many rivers had been polluted, thereby causing the

death of many aquatic animals. They further claimed that the air and water

pollution arising from gas flaring and oil spillage made the area very

hazardous for habitation. Also that the environmental degradation had

adversely affected the economic potentials and manpower resources of Ogoni

Land133.

129 (2000) 4 S.C (PART 11) pg. 1130 www.com The Ogoni were admitted in UNPO on 19th January 1993.131 The Movement of the Survival of the Ogoni People.132 Unreported, (1995)

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13.0 STATE RESPONSIBILITY AND THE ENVIRONMENT.

The principles of state responsibility dictates that States are accountable for

breaches of international Law. Customary international law imposes several

important fundamental obligations upon States in the area of environmental

protection. The view that international law supports an approach predicated

upon the absolute territorial sovereignty, so that a State could do as it liked

irrespective of the consequences upon other States has long been

discredited134. The basic duty upon states is not so to act, as to injure the rights

of other States135.

13.1 In the Trial Smelter Case136, which involved a dispute between Canada and

the United States over sulphur dioxide pollution from a Canada smelter built

in a valley shared by British Columbia and the State of Washington which

damaged trees and crops on the American side of the border, the Tribunal

noted that.

“…Under principles of international law, as well as law of the US,

no state has the right to use or permit the use of territory in such a

manner as to cause injury by fumes in or to the territory of another

or the properties or persons therein, when the case is of serious

consequence by clear and convincing evidence”

The International Court reinforced this approach, by emphasising in the Corfu

Channel Case137 that it was the obligation of every State not to allow

knowingly its territory to be used for acts contrary to the rights of other

States138.

133 Internet source: Following a petition to the National Assembly, the Senate in 2005 awarded N500 billion Compensation against shell & in favour of the Ogoni’s for the environmental damage and degradation through the oil exploration and exploitation by shell in Ogoni Land.134 Shaw Op cit p. 760135 Ibid. See Island of Palmas case 2 RIAApp829,839(1928) where it was held that the concept of territorial sovereignty incorporated an obligation to protect within the territory the rights of other states.136 33 AJIL 1939 P. 182 & 33AJIL 1941 P. 315.137 ICJ reports 1949 pp 4, 22138 Shaw Op cit. p.761

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13.2 It is sometimes argued that the appropriate standard for the conduct of States

in the area of environmental protection is that of strict liability139, that is,

states are under an absolute obligation to prevent pollution and thus liable for

its effect irrespective of fault140. Though the leading cases on this standard are

inconclusive in the Trial Smelter Case, however, Canada’s responsibility

was accepted from the start, the case focusing upon the compensation payable

and the future operation of the smelter141 while the strict theory was not

apparently accepted in the Corfu Channel Case.

1303 In the Trial Smelter Case, the Tribunal focused on the need to show that the

matter was of ‘serious consequence’, while Article 1 of the Convention on

Long-Range Transboundary Air Pollution 1979 provides that the pollution

concerned must result in deleterious effects of such a nature as to endanger

human health, harm living resources and ecosystems and material property

and impair or interfere with amenities and other legitimate uses of the

environment142.

As far as the range of interests injured by pollution is concerned, the Trial

Smelter Case focused upon loss of property. Later definitions of pollution in

international instruments have broadened the range to include harm to living

resources or ecosystems, interference with amenities and other legitimate uses

of the environment or the sea. Article 1(4) of the Convention on the Law of

the Sea, 1982 defines pollution of the marine environment as the ‘introduction

by man, directly or indirectly, of substances or energy into the marine

environment… which results or is likely to result in … deleterious effects143.’

The type of harm that is relevant clearly now extends beyond damage to

139 Ibid.140 This is also referred to as polluter pay (ppp) principle in environmental Law.141 Shaw Ibid142 Op. cit.143 See also Art 1(2) of the Vienna Convention on the Ozone Layer 1985; Art 1(1) Climatic Change Convention on Civil Liability for Environmental Damage 1993.

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property, but problems do remain with regard to general environmental injury

that cannot be defined in material form144.

14.0 CONCLUSION.

From the foregoing, it should be apparent that environmental and human

rights are inextricably linked; to talk about one implies the other. The

demands for a safe pollution - free and healthy environment, as coming within

the scope of human rights, have to a large extent been propagated by the

developing countries of the south against the culture of industrialized

countries of the North, a culture directed at economic growth based on mass

production, mass consumption and mass disposal of waste materials, all of

which amount to a clear breach of the fundamental rights of the poorer

countries145. One of the most important consequences of incorporating human

rights principles within an environmental scope is to provide victims of

environmental degradation the possibility of access to all round justice. Given

the occasional helplessness suffered by victims of environmental degradation,

“linking human rights and the environment brings such victims closer to the

mechanisms of protection that are provided by human rights law.” As we

increasingly recognise the impact of a polluted and degraded environment on

human health and well-being, we are better placed to adjust our policies and

cultural practices to reflect our enhanced understanding. Consequently, 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.

Eventually this will 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

144 Security Council Resolution 687(1991) declared that Iraq was liable under International Law interalia “for any direct loss, damage, including environmental damage and the depletion of natural resources” occurring as a result of the unlawful invasion & occupation of Kuwait.145 The role of African countries in this respect must have informed the H/Q of UNEP’S location in Nairobi, Kenya.

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resources and natural ecosystems, for the use and enjoyment of both present

and generations yet unborn146.

15.0 PARTING REMARK

Of the estimated half billion biological organisms that are believed to

have existed over the past 600 million years, only a fraction (1-10%) of

these species still exist today147. Environmental rights are human rights

and our right to protect. If the flora, fauna and fishes die, we die.

REFERENCE S

Acevedo, M.T. (1999) The Intersection of Human Rights and Environmental Protection In the European Court of Human Rights,NYU Environmental Law Journal,Volume 8

Ahmed, A.K. (2003). Environmental Protection,Public Health and Human Rights, An integrated Assessment (internet source)

Dinah, S. (2002) Human Rights Health & Environmental Protection: Linkage In Law & Practice; Health and Human Rights Working Paper Series, No.1

Kefsentni Report (1994) UN Doc.E/CN4/Sub.2/1994/9, July 6

Onyido, J.C. (1992) The Right To A Safe Environment, Finance & Investment Law, Volume 8, No. 1-2

Oyebode, A. (2003) United Nations and Protection of Human Rights In Africa, International Law & Politics: African Perspective, Bolabay Publications, Lagos

Sabharwal, Y.K. (2004) Human Rights and the Environment (internet source)

Shaw, M, (2005), International Law, Cambridge University Press, 5th Edition

146 Ahmed A. K Op cit p.23147 Sabharwal YK. Op cit.

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Thornton, J & Beckwith S. (1997) Environmental Law, Sweet & Maxwell, London

Uchegbu, S.N. (1998) Environmental Management & Protection, Precision Publishers, Enugu

U.N. (1993) Climatic Change Convention On Civil Liability for Environmental Damage

U.N. (1992) United Nations Conference on the Environment and Development, Rio de Jeneiro

U.N.(1972) Stockholm Declaration of The United Nations Conference on the Human Environment Stockholm Conference, 16th June

U.N (1985) Vienna Convention on the Ozone Layer Article 1 (1)

WHO Report (1992) Our Planet Our Health, Report of the Commission on Health and Environment

CASES

Elf Nig.Ltd. V Opera Silo & Otrs (1994) 6 NWLR, p. 350, 258 SC

Fundepublico V Mayor of Bugalagrade & Otrs (1991) Jugzado Primeno Superior, Interlocutorio No. 032, 19th December

Guerra Otrs V Italy (1998) 26 EH RR 357

Ken Saro-Wiwa, President of Mosop & 8 Otrs (1995) Unreported

Lopez Ostra V Spain (1995) 20 EH RR 277

Rylands V Fletcher (1866) L.R. 1 Exch 265

Seismograph Service (Nigeria) Ltd. V Ogbeni (1976) 4 SC 85

Shell Petroleum Development of Nig. Ltd. V Chief Otoko & Otrs (1990) 6 NWLR pp. 159, 693.

Sub hash Kumar V State of Bihar (1991) AIR SC 420

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Trail Smelter Case (1939) 33 AJIL p.182

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