The right to a clean and healthy environment: do we need a stand-alone right? (Forum)


By EDO. This article is part of our August theme, which focuses on the environment and human rights. Read more articles on this theme.

Support is growing in international and comparative domestic law for the idea that existing human rights should be interpreted broadly, so that, in effect, they require the protection of the environment to ensure human wellbeing. The “first generation” right to life and right to public participation, and “second generation” rights to adequate food, water and sanitation, and the highest attainable standard of health, are just some examples of this.

But what about the right to a clean and healthy environment as a stand-alone right?

Numerous nations worldwide are leading the way on this issue by explicitly recognising the “third generation” right to a clean and healthy environment. For example, Article 24 of the African Charter on Human and Peoples’ Rights reads: “All peoples shall have the right to a general satisfactory environment favourable to their development.”

Article 11 of the Protocol of San Salvador to the American Convention on Human Rights provides that:

    Everyone shall have the right to live in a healthy environment and to have access to basic public services.The States Parties shall promote the protection, preservation, and improvement of the environment.

Article 14 of the Constitution of Ecuador recognises “the right of the population to live in a clean and ecologically balanced environment”.

These documents recognise that basic needs are easily undermined as a result of environmental damage. Put another way, they acknowledge that a clean and healthy environment is key to ensuring that human rights are upheld.

For this reason, various bodies (among others, the Advisory Council of Jurists for the Asia-Pacific Forum on National Human Rights Institutions) have endorsed the explicit protection by states of “a specific right to an environment conducive to the realisation of fundamental human rights”.

The Australian Network of Environmental Defenders Officers has endorsed the idea of a stand-alone right to a clean and healthy environment. Ideally this should be enshrined in a national Human Rights Act or similar instrument. It would serve to underpin other fundamental rights, and add weight to the growing consensus among nations of the value of a unifying right or principle that recognises the relationship between environmental health and the realisation of basic human rights.

Questions for comment

Would a stand-alone right to a clean and healthy environment assist us to achieve a higher standard of human rights, and/or better environmental outcomes? In what ways?

What are the benefits of linking human rights to the environment agenda? On the other hand, what might some of the drawbacks be?

There has been some support for a Declaration of Human Rights and Environment. What might this look like and how would this approach differ from State-based implementation of a right to a clean and healthy environment?