Codification of Human Rights Law Vis-à-Vis Environmental Law

Namami Jain[1]& Vidhi Arora[2]

Introduction

The purpose of this research paper is to give an overview of the topic – Human Rights and the Environment Law, and to establish the relationship between the two fields. It aims to provide a common foundation for discussion; a number of cross-cutting issues shall be identified which shall lead us to a fundamental set of questions concerning the concepts of human rights and the need to protect the environment.

The relationship between human rights and the environmental protection in law is far from simple. There are three main dimensions of the inter-relationship:

  1. The environment as a pre-requisite for the enjoyment of human rights; 
  2. Certain human rights, especially access to information, participation in decision-making, and access to justice in environmental matters, as essential to good environmental decision-making; and 
  3. The right to a safe, healthy and ecologically-balanced environment as a human right in itself. 

At the Stockholm concluding session, the participants proclaimed: “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 a man’s environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights – including the right to life itself.

Environment Protection and Human Rights

Section 2 (a) – The Environment (Protection) Act, 1986

“Environment includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property.”

The Constitution of India and the Environment

Certain provisions in the Constitution recognizing the fundamental right to (clean and wholesome) environment have been set off by judicial activism in the recent past for protecting and improving the environment since it is a commitment of our country wedded to the ideas of a Welfare State. The relevant provisions are:

Article 48A: Global awareness for the protection of environment in the 1970s led the Indian Government to enact the 42nd Amendment, 1976 to the Constitution. The said Amendment added Article 48A to the Directive Principles of State Policy which declares:
“the State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.”

A corresponding responsibility was imposed upon each citizen in the form of Fundamental Duty under Article 51A (g): “to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures.”

The Amendment brought about certain changes in the Seventh Schedule too. ‘Forest’ and ‘Wildlife’ were transferred from the State List to the Concurrent List, exhibiting the concern of the Indian Parliament to give priority to environment protection.

Thereafter, in several environment cases, the courts guided by the language of Article 48A have elucidated it as imposing “an obligation” on the government, to protect the environment.

In the Ganga Water Pollution case, M C Mehta v. Union of India[3] it was observed that river Ganga was being polluted due to the untreated effluence let out by some of the owners of the leather tanneries without setting up the primary treatment plants in Kanpur. The Supreme Court ordered to immediately stop the running of these tanneries and directed to stop the discharging of effluence either directly or indirectly from tanneries into the river.

Article 246

Article 246 divides the subject areas of legislation between the Union and the States. The Union List includes defense, foreign affairs, atomic energy, intestate transportation, shipping, air trafficking, inter-state rivers, etc. The State List includes public health and sanitation, agriculture, water supplies, irrigation and drainage, etc. The Concurrent list includes forests, protection of wildlife, mines and minerals and development not covered in the Union List, population control and factories.

From an environmental viewpoint, the allocation of legislative authority is an important one – some environmental problems, such as sanitation and waste disposal, are best geared at the local level; others, like water pollution and wildlife protection, are synchronized by uniform national laws.

Also Read  Environment and Sustainable Development: A Critical Study of the Role of International Laws in Preserving Environment and Promoting Sustainable Development

Article 253

“Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

Tiwari Committee, 1980 had recommended that a new entry on “Environmental Protection” be introduced in the Concurrent List to enable the Centre to legislate on environmental subjects.

Article 14 and Article 19 (1) (g)

 “The states shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

 The right to equality is also infringed by government decisions that have a leading impact on the environment. An arbitrary action necessarily involves a negation of equality, thus urban environmental groups often take shelter of Article 14 to quash arbitrary municipal permission for constructions that are contrary to development regulations.

Article 21

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

In Maneka Gandhi v.Union of India,[4] the  Supreme Court held that under Article 21,the right to life is not only confined to mere animal existence, but also extends to the right to live with the basic human dignity.

Similarly, while interpreting Article 21 in Ganga Pollution case, the Court while justifying the closure of polluting tanneries held that the closure of tanneries might bring unemployment, loss of revenue, but life. Health and ecology have greater importance to the people.”

Environmental Laws in India

The Water (Prevention and Control of Pollution) Act, 1974

Discharging of pollutants into water bodies beyond a given standard is prohibited under this Act which lays down penalties for non-compliance with its provisions. The Act provides for setting up the Central Pollution Control Board (CPCB) which lays down standards for the prevention and control of water pollution. State Pollution Control Boards (SPCBs) function under the directions of the CPCB.

The Air (Prevention and Control of Pollution) Act, 1981

The Act makes provisions for Central and State Pollution Control Boards to declare pollution control areas, to put restrictions on certain industrial units and to define the authority of the Boards to limit emission of air pollutants; the Act further lays down penalties for the non–compliance with its provisions.

The Bhopal Gas Leak Case

Bhopal Gas Leak case is regarded as a landmark in the area of evolving principles of corporate liability for the use of hazardous technology since it raised questions about the liability of parent companies for the acts of their subsidiaries; the responsibilities of multi-national corporations engaged in hazardous activities; and the applicable principles of liability.

In Union Carbide Corporation v. Union of India,[5] the Supreme Court secured a compromise between the UCC and the Government of India wherein the UCC agreed to pay US $470 million in full and final settlement of all past, present and future claims arising from the Bhopal disaster. In addition to facilitate the settlement, the Supreme Court exercised its extraordinary jurisdiction and terminated all civil, criminal and contempt of court proceedings that had arisen out of the Bhopal disaster. It was declared by the Court that if the settlement fund is exhausted, the Union of India should make good deficiency.

Definition of Human Rights

‘Human Rights’ are rights inherent to all human beings, regardless of gender, nationality, place of residency, sex, ethnicity, religion, colour or any other categorization, and are non-discriminatory i.e. all human beings are entitled to them. Right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more are included in these rights. 

Relationship between Human Rights and Environment Protection

Principles of the Stockholm Declaration on the Human Environment state:

  1. A man’s fundamental right to freedom, equality and adequate conditions of life provides for an environment that permits a life of dignity and well-being; and
  2. He bears a solemn responsibility to protect and improve the environment for present and future generations.

For example, Male Declaration (2007) on the Human Dimension of Global Climate Change stated that ‘climate change has clear and immediate implications for the full enjoyment of human rights’.

Now a primary question that arises is: Why should environment protection be treated as a human rights issue?

There are several propositions towards this question:

  1. A human rights perspective directly indicates the environmental impacts on the life, health, and property of individuals rather than on other States or the environment in general. Its focus is to secure higher standards of environmental quality based on the obligation of States to take measures to control pollution affecting health and private life. 
  2. The link between human rights and environment helps to promote the rule of law in environmental matters, i.e. the governments become directly accountable for their failure to address environment issues.
  3. Human rights considerations facilitate public participation in environmental decision-making, access to justice, and access to information.  A human rights approach can more emphatically embrace elements of the public interest in order to protect the environment as a human right.
Also Read  The Evolution of Privacy and Revolution in Bodily Autonomy: A Quantum Leap in Constitutional Law

The three theoretical approaches to the relationship between human rights and the environment are:

  1. pre-condition to the enjoyment of human rights;
  2. tools to address environmental issues, both procedurally and substantively; and
  3. the concept of sustainable development.

 But to what extent a State must respect the human rights of persons in other countries, becomes an important question once we start to ask whether we can view matters such as climate change, large scale depletion of biodiversity, land degradation and trans-boundary air and water pollution in human rights terms.

A State which fails to control harmful activities within its own territory that cause or risk causing foreseeable environmental harm extra-territorially, is more likely to violate the human rights of those affected if it does not permit them equal access to environmental information and participation in environmental impact assessment (EIA) permitting procedures, or if it denies access to adequate and effective remedies within its own legal system.

Development v Protection

The context of poverty is unfavourable for environmental protection either because of the level of poverty of the poor or because of their level of education. When people or countries are extremely poor, environmental awareness always remains weaker than the struggle for economic growth. Poor people and States are the first victims of a lack of environmental protection.

Let us assess the situation by asking two questions. First: given that economic growth is very difficult today, without a significant use of fossil fuels responsible for most greenhouse gas emissions, can we say that in order to produce in large quantities as part of the right to economic growth, developing countries must necessarily pollute too much?

To support the idea that the economic development of poor countries cannot be compatible with strong environmental protection when they are still very poor, economic growth necessarily clashes with environmental protection. But, in the long-term, once the country has reached a certain level of economic sufficiency, development is its human aspect. Thus, in very poor countries, sustainable growth will seriously clash with environmental protection. Producing will be synonymous with polluting.

If protecting nature means saving an ecosystem or a rare animal species, it would be difficult to explain prioritizing the ecosystem or a river while people are still starving. We simply cannot use scarce financial resources to protect rare species or ecosystems instead of addressing basic human needs; the fight against poverty in poor countries certainly clashes with the fight for environmental protection.

Protecting nature may imply limiting access to natural resources. But natural resources represent an important source of funds for some developing countries. Not using or selling trees will certainly be good for the environment, but bad for poor people and countries.

The example of Lake Chad is an illuminating example. Lake Chad is essential to twenty million people from Chad. If it disappears, the consequences will be drastic at the environmental and economic level. But to save Lake Chad, several million dollars are needed and these poor people have few financial resources; so the problem is either to devote the same to the environmental emergency or to allocate the same for the basic needs in terms of education and health of their poorest populations.

The Right to Development of Developing Countries: An Argument against Environmental Protection

The first argument refers to psychology and connects ecological consciousness with the level of poverty. When basic needs of poor people or States are not met, all other forethoughts are secondary. Thus, we can draw an empirical claim that the desire for some economic growth which fills basic needs will always be stronger than the environmental mindfulness in poor countries.

The second argument relates environmental awareness to education. Environmental awareness is directly proportional to the educational level of people. The more educated people are, the better they are conscious of the risks of environmental degradation. But, education itself requires substantial financial resources in terms of infrastructure and enrollment of qualified staff. And these resources are already insufficient in poor countries.

Also Read  Role of Courts and Investigative Agencies in Access to Justice

Another concern is international competition which affects the desire of poor countries to protect nature.

When a State tries to be environmentally principled, it suffers from the destructive consequences on nature of non-principled States. In this regard, a poor and environmentally principled country will face a condition known as double jeopardy; not only losing ground on economic competitiveness but also sharing the burden of adverse effects of an impaired environment. Hence, we can say that international economic competition has made the situation more complex for poor countries. Poor countries who wish to protect the environment are at a risk of unfair competition. It becomes extremely difficult or quite impossible in this regard for poor countries to deal with strong environmental protection.

In fact, Environment should be treated as a shared responsibility. Rich countries must take larger share of responsibility than the poor countries.

Can Development benefit from Demanding Environmental Standards?

In developing countries even if development and environment collides, we must not forget that the protection of the environment can be a real opportunity to boost both the economic growth and fair institutions. In this perspective, the right to development becomes an argument in favour of demanding environmental standards, especially in countries which are economically poor but rich in natural resources.

This leads us to another question: knowing that the political system has a greater impact on economic growth than the natural resources of a country, can any strong environmental protection scheme in a poor country in restricting access to its natural resources, improvise the quality of the political system and be beneficial?

For this, it is important to use the idea of the paradox of plenty, better known as “resource curse” or the “Dutch disease”. According to this paradox, countries with powerful natural resources are curiously often those who are least competitive, under-privileged in economic terms and politically the most unstable.

The case of the Democratic Republic of Congo is by far the most challenging. Even though it is one of the richest countries in terms of natural resources, it remains economically one of the poorest countries in the world and a country where human rights are the most violated.

Therefore, there must be a strong link between some aspects of environmental protection and limited access to natural resources, and between this limitation and political structure, and finally between the political structure and economic growth.

If a poor country restricts its access to natural resources, it strongly protects the environment either by stopping the exploitation of trees that helps to regulate pollution or by stopping the exploitation of oil that helps reduce pollution. Thus, by reducing logging and oil exploitation, it would be impelled to diversify its economy. Being less dependent on the resources will be good for the economy and being more dependent on the citizens will boost transparency and democracy.

Conclusion

This article draws three assertions:

First, the right to development of poor countries should be understood as the right to fight against poverty and to fight for the protection of basic freedoms through the establishment of just and democratic institutions (human development). In the words of Amartya Sen, people who live in material abundance but who lack basic freedoms cannot be considered developed.

This leads us to our second one: the right to development of poor countries can clash with strong environmental standards as one comes in the path of the other when it comes to poor countries.

Third, the right to development of poor countries can actually be strengthened by environmental considerations if they try to look at other possible though challenging ways. The limitation of access to natural resources can positively impact this type of establishment and contribute to the economic and human development.

Thus, even if the right to development in poor countries infringes the environmental standards endangering the lives of the poor and contravening with the human rights of the most vulnerable, we must never forget that on a closer scrutiny, strong environmental protection can actually make poor countries wealthier, more democratic, and fairer.       


[1] BBA LL.B. III year, Vivekananda Institute of Professional Studies, GGSIPU.

[2] BBA LL.B. III year, Vivekananda Institute of Professional Studies, GGSIPU.

[3] M C Mehta v. Union of India AIR 1988 SC 103.

[4] Maneka Gandhi v. Union of India AIR 1978 SC 597.

[5] Union Carbide Corporation v. Union of India AIR 1990 SC 273.