|Environmental Change and International Law: New Challenges and Dimensions (UNU, 1992, 493 pages)|
|International human rights law and environmental problems|
|9. The contribution of international human rights law to environmental protection, with special reference to global environmental change|
The right to life is nowadays universally acknowledged as a basic or fundamental human right. It is basic or fundamental because "the enjoyment of the right to life is a necessary condition of the enjoyment of all other human rights."75 As indicated by the Inter-American Court of Human Rights in its Advisory Opinion on Restrictions to the Death Penalty (1983), the human right to life encompasses a "substantive principle" whereby every human being has an inalienable right to have his life respected, and a "procedural principle" whereby no human being shall be arbitrarily deprived of his life.76
The Human Rights Committee, operating under the UN Covenant on Civil and Political Rights (and Optional Protocol), qualifying the human right to life as the "supreme right of the human being," has warned that the fundamental human right "ne peut pas être entendu de façon restrictive" and its protection "exige que les Etats adoptent des mesures positives."77 The Inter-American Commission on Human Rights, likewise, has drawn attention to the binding character of the right to life.78 In its recent resolution no. 3/87, on case no. 9647, concerning the United States, the Inter-American Commission, after identifying a norm of jus cogens that "prohibits the State execution of children," warned against "the arbitrary deprivation of life" on the basis of a patchwork scheme of legislation that subjects the severity of the punishment (of the offender) to the "fortuitous element of where the crime took place."79
Under international human rights instruments, the assertion of the inherent right to life of every human being is accompanied by an assertion of the legal protection of that basic human right and of the negative obligation not to deprive arbitrarily of one's life (e.g., UN Covenant on Civil and Political Rights, Article 6 ; European Convention on Human Rights, Article 2; American Convention on Human Rights, Article 4 ; African Charter on Human and Peoples' Rights, Article 4).80 But this negative obligation is accompanied by the positive obligation to take all appropriate measures to protect and preserve human life. This has been acknowledged by the European Commission of Human Rights, whose case-law has evolved to the point of holding (Association X versus United Kingdom case, 1978) that Article 2 of the European Convention on Human Rights imposed on states also a wider and positive obligation "de prendre des mesures adéquates pour protéger la vie."81
Taken in its wide and proper dimension, the fundamental right to life comprises the right of every human being not to be deprived of his life (right to life) and the right of every human being to have the appropriate means of subsistence and a decent standard of life (preservation of life, right of living). As well pointed out by Przetacznik, "the former belongs to the area of civil and political rights, the latter to that of economic, social and cultural rights."82 The fundamental right to life, thus properly understood, affords an eloquent illustration of the indivisibility and interrelatedness of all human rights.83
In fact, some members of the Human Rights Committee have expressed the view that Article 6 of the UN Covenant on Civil and Political Rights requires the state "to take positive measures to ensure the right to life, including steps to reduce the infant mortality rate, pre vent industrial accidents, and protect the environment...."84 Taking the essential requirements of the right of living (supra) as a corollary of the right to life, Desch argued that inequitable distribution of food or medicaments by public authorities, or even the toleration of malnutrition or failure to reduce infant mortality would constitute violations of Article 6 of the Covenant if there results an arbitrary deprivation of life.85
During the drafting of the 1948 Universal Declaration of Human Rights, attempts were made to make its Article 3, which proclaims the right to life, more precise.86 A number of issues were the object of discussion in the drafting of corresponding provisions on the right to life of human rights treaties,87 but it was the views and decisions more recently rendered by international supervisory organs that have gradually given more precision to the right to life as enshrined in the respective human rights treaties (see supra). Even those who insist on regarding the right to life strictly as a civil righ88 cannot fail to admit that, ultimately, without an adequate standard of living (as recognized, e.g., in Articles 11-12 of the UN Covenant on Economic, Social, and Cultural Rights, following Article 25  of the 1948 Universal Declaration), the right to life could not possibly be realized in its full sense89 (e.g., in its close relationships with the right to health and medical care; the right to food, and the right to housing).90 Thus, both the UN General Assembly (resolution 37/189A, of 1982) and the UN Commission on Human Rights (resolutions 1982/7, of 1982, and 1983/43, see 1983) have unequivocally taken the firm view that all individuals and all peoples have an inherent right to life, and that the safeguarding of this foremost right is an essential condition for the enjoyment of the entire range of civil and political, as well as economic, social, and cultural rights.91
Two points are deserving of particular emphasis here. First, it has not passed unnoticed that the provision of the UN Covenant on Civil and Political Rights on the fundamental and inherent right to life (Article 6 ) is "the only Article of the Covenant where the inherency of a right is expressly referred to."92 Secondly, the United Nations has formed its conviction that not only all individuals but also all peoples have an inherent right to life (supra). This brings to the fore the safeguard of the right to life of all persons as well as of human collectivities, with special attention to the requirements of the survival (as a component of the right to life) of vulnerable groups (e.g., the dispossessed and deprived, disabled or handicapped persons, children and the elderly, ethnic minorities, indigenous populations, migrant workers - see section Vl, infra).93
From this perspective, the right to a healthy environment and the right to peace appear as extensions or corollaries of the right to life.94 The fundamental character of the right to life renders inadequate narrow approaches to it in our day; under the right to life, in its modern and proper sense, not only is protection against any arbitrary deprivation of life upheld, but furthermore states are under the duty "to pursue policies which are designed to ensure access to the means of survival"95 for all individuals and all peoples. To this effect, states are under the obligation to avoid serious environmental hazards or risks to life, and to set into motion "monitoring and early-warning systems" to detect such serious environmental hazards or risks and "urgent-action systems" to deal with such threats.96
In the same line, in the First European Conference on the Environment and Human Rights (Strasbourg, 1979), the point was made that mankind needed to protect itself against its own threats to the environment, in particular when those threats had negative repercussions on the conditions of existence - life itself, physical and mental health, the well-being of present and future generations.97 In a way, it was the right to life itself, in its wide dimension, that entailed the needed recognition of the right to a healthy environment; this latter appears as "le droit à des conditions de vie qui assurent la santé physique, morale, et sociale, la vie elle-même, ainsi que le bien-être des générations présentes et futures."98 In other words, the right to a healthy environment safeguards human life itself under two aspects, namely, the physical existence and health of human beings and the dignity of that existence, the quality of life that renders it worth living.99 The right to a healthy environment thus encompasses and enlarges the right to health and the right to an adequate or sufficient standard of living, and has furthermore a wide temporal dimension: as, "en matière d'environnement, certaines atteintes à l'environnement ne produisent d'effets sur la vie et la santé de l'homme qu'a long terme,... Ia reconnaissance d'un droit a l'environnement... devrait done admettre une notion large des atteintes.100
Thus, the wide dimension of the right to life and the right to a healthy environment entails the consequent wider characterization of attempts or threats against those rights, what in turn calls for a higher degree of their protection. An example of those threats is provided by, e.g., the effects of global warming on human health: skin cancer, retinal eye damage, cataracts and eventual blindness, neurological damage, lowered resistance to infection, alteration of the immunological system (through damaged immune cells); in sum, depletion of the ozone layer may result in substantial injury to human health as well as to the environment (harm to terrestrial plants, destruction of the zooplankton, a key link in the food chain),101 thus disclosing the needed convergence of human health protection and environmental protection.
In the realm of international environmental law, the 1989 Hague Declaration on the Atmosphere, for example, states that "the right to live is the right from which all other rights stem" (§1), and adds that "the right to live in dignity in a viable global environment" entails the duty of the "community of nations" vis-à-vis "present and future generations" to do "all that can be done to preserve the quality of the atmosphere" (§5). The use of the expression the right to live (rather than the right to life) seems well in keeping with the understanding that the right to life entails negative as well as positive obligations as to preservation of human life (see supra). The Institut de Droit International, while drafting its Resolution on Transboundary Air Pollution (Session of Cairo, 1987), was attentive to include therein provisions referring to the protection of life and human health. 102
One has propounded as a criterion for the characterization of "severe violations" of human rights occurrences when "large numbers of people are harmed.103 In his suggested typology of those occurrences, Falk includes "ecocide" among "severe violations" of human rights, stressing the "human dependence on environmental quality," which renders this latter a "dimension of human rights."104 He argues that, despite the fact that "offenses" to the environment (such as, e.g., the carrying on of nuclear atmospheric tests, the depletion of the global ozone layer, the disposal of toxic wastes into the oceans) have not traditionally been dealt with regularly in human rights instruments, they, however,
involve official conduct that seriously endangers the life, health, and serenity of current and future generations. The notion of human rights is incomplete to the extent that it fails to encompass those forms of deliberate behaviour that produce serious environmental damage.
... Environmental quality is a critical dimension of human dignity that may have a significant impact on development, and even survival, of mankind.105
Together with the right to a healthy environment, the right to peace appears also as a necessary prolongation or corollary of the right to life. In fact, the Inter-American Commission on Human Rights has been attentive to address the requirements of survival as a component of the right to life: to the Inter-American Commission, the right to life comprises or requires not only protection in the form of preventive measures against all forms of ill-treatment and threats to life and health,106 but also the realization of "the economic and social aspirations" of all peoples by pursuing policies that assign priority to "the basic needs of health, nutrition, and education"; in the words of the Commission, "the priority of the 'right of survival' and 'basic needs' is a natural consequence of the right to personal security."107 The Commission has furthermore dwelt upon the requirement of cultural survival of indigenous populations as a component of the right to life.108 At the global level, one has likewise proceeded to the last consequences of the requirements of survival: the UN General Assembly, e.g., has taken the right to life as encompassing "protection against the use of weapons of mass destruction, such as nuclear weapons"; this entails the "duty to negotiate in good faith to achieve disarmament and procedural safeguards upon the use of weapons of mass destruction.109
In this connection, in its general comment 14(23), of 1985, on Article 6 (on the right to life) of the UN Covenant on Civil and Political Rights, the Human Rights Committee, after recalling its earlier general comment 6(16), of 1982, on Article 6(1) of the Covenant - to the effect that the right to life, as enunciated therein, is "the supreme right from which no derogation is permitted even in time of public emergency" - went on to relate the current proliferation of weapons of mass destruction to "the supreme duty of States to prevent wars." The Committee associated itself with the growing concern, expressed during successive sessions of the UN General Assembly by representatives from all geographical regions, at what represented one of the "greatest threats to the right to life which confronts mankind to day." In the words of the Committee, "the very existence and gravity of this threat generate a climate of suspicion and fear between States, which is in itself antagonistic to the promotion of universal respect for and observance of human rights" in accordance with the UN Charter and the UN Covenants on Human Rights.110 The Committee, accordingly, "in the interest of mankind," called upon "all States, whether Parties to the Covenant or not, to take urgent steps, unilaterally and by agreement, to rid the world of this menace."111
The maintenance of peace is an imperative for the preservation of human life that has found expression in the UN Charter (preamble and Articles 1 and 2) and the Unesco Constitution (preamble and Article I). The Unesco Constitution, moreover, refers to the need of assuring the conservation and protection of the "world's inheritance" of knowledge, so that this latter is increased and diffused for the realization of the purpose of the Organization to contribute to peace (Article I [c]). The Final Act of the 1968 Teheran Conference on Human Rights contains likewise several references to the relationship of the observance of human rights and the maintenance of peace.112 In this connection, reference can further be made to the preambles of the two 1966 UN Covenants on Human Rights. More recently the "right to peace" has formed the object of a number of UN resolutions that relate it to disarmament and detente, thus disclosing the temporal dimension of the underlying duty of prevention of conflicts113 (e.g.? inter alia GA resolutions 33/73, of 1978, and 34/88, of 1979). The states' duty to coexist in peace and to achieve disarmament is acknowledged in the 1974 Charter on Economic Rights and Duties of States (Articles 26 and 15, respectively).
The right to peace entails as a corollary the "right to disarmament"114 attention has in this regard been drawn to the fact that limitations or violations of human rights are often associated with the outbreak of conflicts, the process of militarization, and the expenditure on arms,115 especially nuclear weapons and other weapons of mass destruction,116 which have led and may unfortunately still lead to arbitrary deprivation of human life. The conception of sustainable development, as propounded by the Brundtland Commission, points to the ineluctable relationship between the rights to a healthy environment, to peace, and to development.117 On this specific point, it should not pass unnoticed that Costa Rica has lately submitted to the 1989 session of the UN General Assembly a Draft Declaration on Human Responsibilities for Peace and Sustainable Development.118 References to the right to peace and disarmament can further be found in the 1982 World Charter for Nature (preamble, §4[c], and Principles 5 and 20).
Last but not least, the relationship between the right to life and the right to development as a human right becomes clearer as one moves from the traditional, narrow approach to the right to life (as strictly a civil right) into the wider and modern approach to it, as encompassing also the minimum conditions for an adequate and dignified standard of living (see supra). Then the interrelatedness of the right to life and the right to development as a human right becomes self-evident, as this latter purports to demand all possible endeavours to overcome obstacles (of destitution and underdevelopment) preventing the fulfilment of basic human needs.119 Not surprisingly, the UN Working Group of Governmental Experts on the Right to Development recommended in 1984 inter alia that particular attention should be paid to the basic needs and aspirations of vulnerable or disadvantaged and discriminated groups.120
In sum, the basic right to life, encompassing the right of living, entails negative as well as positive obligations in favour of preservation of human life. Its enjoyment is a precondition of the enjoyment of other human rights. It belongs at a time to the realm of civil and political rights, and to that of economic, social, and cultural rights, thus illustrating the indivisibility of all human rights. It establishes a link between the domains of international human rights law and environmental law. It inheres in all individuals and all peoples, with special attention to the requirements of survival. It has as existensions or corollaries the right to a healthy environment and the right to peace (and disarmament). It is closely related, in its wide dimension, to the right to development as a human right (right to live with fulfilment of basic human needs). And it lies at the basis of the ultimate ratio legis of the domains of international human rights law and environmental law, turned to the protection and survival of the human person and mankind.