'All persons have the right to a secure, healthy and ecologically sound environment. This right and other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible.'– Principle 2, UN Draft Principles on Human Rights and the Environment (1994)
Human rights are essentially about providing people and governments with a set of universally accepted minimum standards that ought to apply to each individual person. International conventions recognise fundamental human rights as civil and political rights and cultural, social or economic rights.
But there is another category of rights which has entered the discourse on human rights in recent years. These are often referred to as 'emerging human rights' and include concepts such as the right to food, development, peace, and a decent environment. The right to a healthy environment is increasingly being recognised by the international community as an important addition to the range of human rights that currently exists.
Why have a human right to a healthy environment?
The debate about environmental rights most often occurs in the context of environmental degradation in countries where regulations are lax – either due to corruption in government and/or scarcity of resources. Under such circumstances, environmental degradation can be devastating for those living in close proximity to poorly regulated industry; examples include the Bhopal gas leak in India or a heavily polluting oil industry in Nigeria. In these situations an internationally recognised right to a healthy environment could be used to protect the rights of those whose lives and livelihoods are impacted by environmental abuses.
What does the rest of the world think?
As early as 1972, human rights were being formally linked to the environment through the 1972 Stockholm Declaration adopted at the UN Conference on the Human Environment. Principle 1 of the Declaration proposes a right to an 'environment of a quality that permits a life of dignity and well-being'. This link is supported by the 1992 Rio Declaration which states that humans are 'entitled to a healthy and productive life in harmony with nature'. The Rio Declaration was adopted by the UN Conference on Environment and Development (UNCED) which was attended by 178 States and 100 heads of State.
Other agreements that expressly recognise the right to a healthy environment are: the International Labour Organisation's (ILO's) Indigenous and Tribal Peoples Convention 1989; the 1988 Protocol to the American Convention on Human Rights 1969 (the Protocol of San Salvador) and the African Charter on Human and Peoples Rights 1981 (the Banjul Charter).
On a national level, by the end of 1998, at least 50 nations (almost a quarter of the total number of recognised nations) had expressly recognised a right to a healthy environment in their constitutions.
What other rights can be used to imply a right to a healthy environment?
Two important existing rights used to correct environmental abuses are the right to life and the right to respect for one's home and property. The latter has been used in several cases in Europe and is perhaps the most frequently used of all existing human rights in protecting a right to a healthy environment – particularly in pollution cases.
The right to life has been used in several cases as a substitute for a right to a healthy environment. For example in India, in the case of Subhash Kumar v State of Bihar, the Supreme Court found that the right to life implied a right to 'enjoyment of pollution-free water and air'. The Indian Supreme and High Courts have been among the most active in this area, making at least 18 major decisions on environmental rights since 1985. Many of these 'activist' decisions have come about as a response to the Bhopal gas leak disaster of 1984.
Do we need a right to a healthy environment in Australia?
The political and natural landscapes in Australia are changing in ways that suggest a right to a healthy environment may become increasingly valuable.
Australians face several looming environmental rights issues in the near future. Some of these will directly affect particular communities, such as plans for nuclear waste dumps in the Northern Territory, while others will affect us all in a more general sense, such as the effects of climate change, growing demands on clean drinking water or release of genetically modified organisms into the environment.
At the same time, we are witnessing the passage of laws (at both the State and Federal levels) that are limiting and/or discouraging our ability to participate in government decision-making or to voice dissent on government actions. This has strong implications for the ability of people to oppose environmentally damaging or dangerous activities occurring in their own backyard.
For example, at the State level, the NSW Parliament recently passed the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reforms) Bill. Among other things, this Bill removes third party appeal rights where the government choses to class a development as a 'critical infrastructure project'. Such developments are also made exempt from certain pollution laws and other environmental legislation.
At the federal level, environmental advocacy groups have recently had federal funding slashed and their tax-exempt status threatened. Public criticism of government actions will also be greatly discouraged with the imminent introduction of proposed new anti-terrorism laws endorsed by both levels of government, which include antiquated sedition provisions.
Now, more than ever, is the time to clarify exactly what human rights Australians think are important for us as a community and as individuals. A Human Rights Act for Australia would be a major step forward in defining what our rights are to ensure that we have a better
chance of defending them. Even if the Act does not contain emerging rights such as the right to a healthy environment, there is still potential for the environmental rights of citizens to be considered using a number of other more conventional rights contained in the draft Bill, such as the right to life; taking part in public life; freedom of expression; the rights of indigenous peoples; an adequate standard of living and physical well-being and health.