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The Human Right to a Clean, Balanced and Protected Environment

Published online by Cambridge University Press:  28 February 2019

Extract

Since the December 1968 General Assembly's resolution in which for the first time the United Nations admitted the linkage between environmental protection and human rights and expressed concern that environmental changes could have various (negative) implications for basic human rights, this question has been vividly discussed on many occasions.

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Copyright
Copyright © 1992 by The Institute for International Legal Information 

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References

1 The conference was convened by the General Assembly in accordance with its resolution 2398 (XXII) of 3 December 1968.Google Scholar

2 It is worth noting that the need to protect and improve the environment was mentioned before the Stockholm Conference by the United Nations Declaration of Social Progress and Development (1969). Among its main objectives, it enumerated in its Article 13, point c, the protection and improvement of the human environment and underlined in its Article 25 that legal and administrative measures for the protection and improvement of the human environment should be established at both national and international levels.Google Scholar

3 Manfred Lachs, “Cours sur le droit international de l'espace extra-atmosphérique,” RCADI, Vol. III, 1964. Louis Sohn, “The Stockholm Declaration on the Human Environment,” Harvard International Law Journal, Vol. 14, No. 3, Summer 1973.Google Scholar

4 Doc. E/CN.4/1194 of 30 January 1976.Google Scholar

5 United Nations Action in the Field of Human Rights, New York, N.Y., United Nations, 1988, Pp. 178-179.Google Scholar

6 In a detailed and well-documented article, Pascale Kromared, “Quel droit à environment? Historique et développements” in Environment et droits de l'homme, Paris, UNESCO, 1987, Pp. 113–150, endorsed constitutional and legislative texts in 45 countries. See also, Alexandre Kiss, “Implementation of the Right to Protection of the Environment: Difficulties and Means” in Second European Conference, “Environment and Human Rights,” Salzburg, Austria, 2-4 December 1980.Google Scholar

7 The right to the environment is not reflected in African constitutions which were drafted mainly in the 1960s before the Stockholm Conference but, as has already been underlined, this continent recognized its existence in the African Charter on Human and People's Rights.Google Scholar

8 Among developed countries, the right to the environment is, inter alia, recognized in the national legislation of Canada, Federal Republic of Germany, France, Japan, Sweden, the Union of Soviet Socialist Republics, and the United States.Google Scholar

9 English text of this and other constitutions. Albert P. Blaustein and Gisbert M. Flanz, Constitutions of the Countries of the World (Dobbs Ferry, N.Y.: Oceana Publications, Inc.), Vol. I-XV.Google Scholar

10 Such laws were adopted, inter alia, by the Federal Republic of Germany (1976), France (1976), Indonesia (1982), Romania (1973), and Venezuela (1976).Google Scholar

11 The right to a clean environment cannot be interpreted as the right to “an ideal environment.” In the world today, a certain degree of pollution is inevitable. The term “clean” should mean a healthy environment, free from dangerous pollution, such as that stemming from radiation or from heavy metal or chemical industries, and free from pollution exceeding the possibility of natural self-purification and endangering consequently the ecological balance and health.Google Scholar

12 The fact that states, communities and individuals have the duty to protect the environment leads some specialists to a thesis that, accordingly, also the right to the environment should be defined as the right to its protection. However, the term “protection” alone does not specify the main objectives of such action and for this reason the right should be based on three elements specifying that everyone has the right to an environment which is clean, ecologically balanced and protected.Google Scholar

13 Programs on Man and the Biosphere (MAB), A Practical Guide to MAB (Paris: UNESCO, June 1987).Google Scholar

14 United Nations Conference on the Human Environment, Stockholm, 1972, recommended: “… that the Secretary-General, the organizations of the United Nations system, especially the United Nations Educational, Scientific and Cultural Organization, and the other international agencies concerned, should, after consultation and agreement, take the necessary steps to establish an international program in environmental education, interdisciplinary in approach, in schools and out of school, encompassing all levels of education and directed towards the general public, in particular the ordinary citizen living in rural and urban areas, youth and adult alike, with a view to educating him as to the simple steps he might take, within his means, to manage and control his environment.”Google Scholar

15 European environmental education for our common future, Report. Lillehammer, Norway, 7–12 May 1989. Norwegian National Commission of UNESCO, p. 15.Google Scholar

16 One of the guiding principles of environmental education points out that it “… should develop in each individual ethics or a code of behaviour teaching him to work for the development and utilization of natural resources with the least destruction and pollution; seek the improvement of the quality of life …; respect the development and economic growth of a nation that may lead to the collapse and debasement of another nation …; utilize technology not only for self-gains and a life of luxury in the short term but also for the economic stability and survival of humankind in the long term; and consider in his consumption of nonrenewable resources the needs of future generations.” UNESCO-UNEP International Environmental Education Programs, Environmental Education: Module for In-Service Training of Science Teachers and Supervisors for Secondary Schools, Environmental Education Series 8, UNESCO, 1986, p. 16.Google Scholar

17 “Declaration de Salzbourg, 1980,” drafted for the Second European Conference, “Environment and Human Rights,” organized in Salzburg, Austria, in December 1980.Google Scholar

18 One can agree with the opinion that, though sometimes the process of participation may slow down the restoration of certain environmental projects, the positive effects of participation far outweigh negative ones. Dorothy Nelkin, “Participation du public à la mise en oeuvre d'un droit l'environnement,” in Environnement et droits de l'homme, Paris, UNESCO, 1987, p. 49.Google Scholar

19 Richard Falk, Friedrich Kratochvil and Saul H. Mendlovitz, International Law. A Contemporary Perspective (Boulder, CO.: Westview Press, 1985), p. 625.Google Scholar

20 13 International Legal Materials, 591 (1974).Google Scholar

21 For an example of the Japanese court practice, see Toyochimo Nomura, “Le droit au respect de l'environnement,” Conférence internationale sur le bicentenair de la Déclaration des droits de l'homme et du citoyen, Actualité, universalité, perspectives, p. 67. He points out that, though rejecting the general right to environmental protection, Japanese courts recognize a new category of subjective rights.Google Scholar

22 Benoît Jadot, “Les procédures garantissant le droit à l'environnement” in Environnement et droits de l'homme, Paris, UNESCO, 1987, Pp. 58-61.Google Scholar

23 E.CN.4.1194, 30 January 1978.Google Scholar

24 General Assembly Resolution 40/34 (1985).Google Scholar

25 Resolution 1503 (XLVIII) of 27 May 1970 adopted by the Economic and Social Council entitled “Procedure for dealing with communications relating to violations of human rights and fundamental freedoms.”Google Scholar

26 Nico Schrijver, “International organization for environmental security” in Bulletin of Peace Proposals, Vol. 20, No. 2, 1989, Pp. 120-121. It seems, at the beginning, that, apart from this rather ambitious proposal, UNEP could eventually establish an informal system for petitions concerning violation of human rights to a clean, balanced and protected environment, similar to the procedure 104EX/3.3, adopted by decision of the UNESCO Executive Board in 1978. See United Nations Action in the Field of Human Rights, New York, N.Y., United Nations, 1988, p. 333.Google Scholar

27 In accordance with well-established practice in the field of human rights, declarations normally precede the adoption of binding international conventions. Such a pattern could be followed in this case.Google Scholar

28 This conference will be convened in accordance with General Assembly Resolution 44/228 of 22 December 1989.Google Scholar

29 Karel Vasak, “Pour les droits de l'homme de la troisième génération: les droits de solidarité.” Leçon inaugurale, Dixième session d'enseignement, Strasbourg, France, 2-27 juillet 1979; D.U. Vargas, “La troisème génération des droits de l'homme, RCADI, 1984, Vol. I; Stephen P. Marks, “Emerging Human Rights: A New Generation for the 1980s?,” Rutgers Law Review, 1981, Vol. 33, No. 2.Google Scholar

30 Pascale Kromarek, “Le Droit à un environnement sain et équilibré.” Colloque sur les nouveaux droits de l'homme: les “droits de solidarité,” Mexico, 12-15 August 1980, UNESCO, Pp. 24-25; “Legal Protection of the Individual and His Environment,” C.M.ENV/CO(73)16, Council of Europe.Google Scholar

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