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The legacy of Rio in the case of Environmental Human

Rights

Abstract

Introduction

Man is both creature and moulded of his environment, which


gives him physical sustenance and affords him the
opportunity for intellectual, moral, social and spiritual
growth. [...] Both aspects of man's environment, the natural
and the man-made, are essential to his well-being and to the
enjoyment of basic human rights - even the right to life
itself.1

The nexus between the environment and mankind is very clear in the historical
analysis of human development. The practical reasons why mankind and the
environment are integrated and interrelated may be found in many disciplines
ranging from the social sciences, with the study of the management of common
resources, to the medical sciences, and the study of disease transmission
between human and animals, to the political sciences and the strive to provide
a functional formula for devolution of authority over natural resources and the
environmental science in their attempt to prevent or mitigate humans' impact
on the environment2. Fundamentally, however, the variety of resources present
1
The quote is the first paragraph of the Declaration of the United Nations Conference
on the human environment, adopted in Stockholm (Sweden) on 16 June 1972, UN Doc.
A/Conf.48/14/Rev. 1 (1973); 11 ILM 1416 (1972). The concept of interdependence between
human and the environment, acknowledged by UNCHE, was carried through by other
United Nations conferences, such as the United Nations Conference on Environment
and Development at Rio (UNCED, 1992), and several resolutions from the 1980s by the
Commission on Human Rights. A more detailed list is provided in M Djeant-Pons and M
Pallemaerts, Human rights and the environment (Council of Europe Publishing, 2002). It
also forms the basis for the Draft Principles on human rights and the environment ,
document of the Commission on Human Rights, Sub-Commission on Prevention of
Discrimination and Protection of Minorities, final report published on 6 July 1994, UN
Doc. E/CN.4/Sub.2/1994/9.
2
To provide an exhaustive reference list for the exemplifications in the paragraph would
entail an injustice towards each discipline, suffice it to refer to the following for each
category. The Nobel Price Prof. Elinor strom published extensively and with a global
breath on the management of the commons and the mechanism of authority devolution
for common pool resources. A relevant reference would be E strom, Governing the
Commons The evolution of institutions for collective action (Cambridge University
Press, Cambridge, 1990). The field of veterinary sciences for wildlife and domestic
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in nature form the basis of our survival on this planet even, and probably
especially, at this time of modern technological acceleration.

Since the second half of the 20th Century, the political and legal fields have
progressively highlighted the biunique relationship between mankind and the
environment, to the point of creating a link between human and environmental
rights. In general, international hard and soft law has been focussed on the
development of human rights in reaction to the tragedies of the Second World
War. However, the political division of the world at the time between capitalist
and communist thinking, contributed to developing a more comprehensive view
of human rights that would not simply include civil and political rights, the
focus of the Western world, but also economic, social and cultural rights, the
tenants of the communist block3. The process of formulation of the 1948
Universal Declaration of Human Rights (UDHR) reflected such dichotomy, and
exemplified in the signature of two separate Covenants on political and civil
rights (PCR), and on economic, social and cultural rights (ESCR), respectively.

animals has shifted perspective in the past century to integrate animal health into
human and environmental health, the concept of One Medicine was first defined by C.
W. Schwabe, Veterinary Medicine and Human Health (Williams and Wilkins, Baltimore,
USA, 1984) and adopted by the American Veterinary Medical Association, AMVA
Resolution: 530 (A-07) of 25 June 2007. The IUCN Sustainable Use Group for Southern
Africa (now Sustainable Use and Livelihoods Group) had provided a series of important
documents on the links between devolution over natural resources, biodiversity
conservation and sustainable development: the most comprehensive and significant,
even at the global level, was compiled by Rowan Martin based on a group meeting,
SASUG, From Sustainable Use to Sustainable Development Evolving Concepts of
Natural Resources Management, SASUG Sustainable Development Conceptual
Framework (2008)
3
These arguments are successfully brought forward, in his first chapter, by M
Ssenyonjo, Economic, Social and Cultural Rights in International Law (Hart Publishing,
2009) and are indeed reflected in critical international and regional legislation on
human rights. Despite the effort at the international level to promote a uniform
approach to human rights, involving all categories, which is reflected in the Universal
Declaration on Human Rights, GA res 217a (III), UN Doc A/810 at 71 (1948), important
regional documents such as the American Convention on Human Rights of 1969, in it's
Art. 26, only recognize ESCRs as progressive rights within the development plans of a
country. Even in the E.U. context, it is not until the 2000 European
Union Charter for Fundamental Rights that human rights are accepted as a whole and
linked with environmental protection. The same arguments are put forward by D
Shelton, Developing substantive human rights (Journal of Human Rights and the
Environment, Vol 1. No. 1, March 2010, pp. 89-120.
2
The application of the two groups of human rights has been object of disputes,
also derived from the contemporary political division, and as exemplified by the
original 1969 American Convention on Human Rights, ESCRs were only
recognised as progressive rights, thus relinquishing the States from any
immediate obligation towards their realisation. In effect, on the international
scene, a hierarchical diversification of human rights was proposed, the
practicality of which has been contested 4. The division of human rights in
generations, posing PCRs as the first, ESCRs as the second and collective
rights as the third, have contributed to generate working contradictions
between the tenets of fundamental international treaties and conventions and
their application5. This including the possibility of acknowledging
environmental protection as a human right, fully integrated and interrelated
with all the presently recognised human rights.

The first and subsequent Earth Summits, which were initiated in Rio de Janeiro
in 1992, should have provided the perfect grounds for the introduction of
environmental protection as a human rights, having had a critical focus on
Sustainable Development and its impact on mankind's ability to justly develop
without further damaging ecological processes and natural resources. This,
however, was not the case as proven by the declaration ensuing each of the
three summits, and their implementation plans. To seek reasons and
justifications for this failure would entail a critical historical review of
international relations in the critical years of the Cold War and the fall of the
Soviet Union, which would bear little benefit to the provision of a way forward.
From the perspective of a development practitioner, the role of the Rio Summit
should have been the creation of a forum for the international legal recognition
of the symbiotic relationship between environmental protection (and the rights
thereof) and human rights. This paper is, therefore, concerned with providing a
conclusive a case for the inclusion of environmental protection as a human
right, based on a logical and theoretical process focussed on rural
development, poverty eradication and natural resources management

4
Ibid. pp. 5, 10, 23-26. This principle, however, is also reflected in national
constitutions, such as the South African Constitution, Act 108 of 1996.
5
Ibid. pp. 9-17.
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(biodiversity conservation) all tenets of the Earth Summit and the Millenium
Development Goals (MDGs). This will lead to explain how the Earth Summits
have failed the WCED, thus leaving a negative legacy that has placed both the
environment and the people the Summit seeks to protect at risk, by increasing
vulnerability, poverty and exclusion of rural and urban poors: in effect,
unfulfilling their ESCRs.

The case for environmental human rights

The case for Environmental Human Rights, as noted by Mushkat 6, is not new,
nor unprecedented. Firstly, the evolution of human rights in the aftermath of the
Second World War has sought to address issues that not only pertain to political
and civil freedoms, but include rights of existence and well-being 7. Secondly the
paradigm shift in environmental studies has allowed for a more thorough
understanding of the relationship between humans and nature, as well as the
relationship of dependency that categorises particular groups, such as
vulnerable rural and urban people who have been forced into the "poverty
trap"8. The outcome of such multi-disciplinary and lateral thinking have been
the suggestion, throughout recent history, of the establishment of global
mechanisms to seek and enforce environmental justice. Three critical

6
R Mushkat, Contextualizing Environmental Human Rights: A Relativist Perspective
(Pace Environmental Law Review, Paper 12)
7
The 1948 Universal Declaration on Human Rights is symbolic of the double approach
to human rights, and has influenced other international and regional Declarations and
Charters that expand on the matter and form the evidence, based on their year of
drafting, for the changes in paradigms to include employment rights, welfare state,
cultural and ethnic rights, and environmental rights. Examples maybe drawn from...
8
Poverty traps are defined as 'any self-reinforcing mechanism, which causes poverty to
persist', by C Azariadis and J Stachurski, Poverty Traps (Handbook of Economic Growth,
2005, p. 326). The concept, with its mathematical formulation, however, dates back to
the 1950s when Richard Nelson discussed it in relation to the central economic models,
and their impact on what we would now call vulnerable societies: R Nelson, A Theory of
the Low-Level Equilibrium Trap in Under-developed Economies (American Economic
Review, vol. 46, no. 5, pp. 894-908). More recently, the concept of poverty trap has been
related to sustainable development and the achievement of the Millenium Development
Goals, both linked to the realisation of ESCRs, the most comprehensive albeit regional
document is a joint publication of the Columbia University and the UN Millenium Project
on Africa: J D Sachs, J W McArthur, G Schmidt-Traub, M Kruk, C Bahadur, M Faye and G
McCord, Ending Africa's Poverty Trap (Brookings Papers on Economic Activity, 2004, No.
1)
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publications on the matter are deemed to be fundamental for setting the
theoretical and legal question for Environmental Human Rights 9. Together, they
bring about important linkages between the philosophical grounding and the
legal background, as well as the socio-economic requirement. Hancock's
definition of the 'two ecologically vital legal prescriptions', however, is
exclusively anthropocentric. It is oblivious of the need to look at the
environment primarily as a resource provider and, secondarily, as a survival
mechanism for particular categories of individuals more at risk and for mankind
as a whole: a point that is very clear to practitioners trying to address
development problems at the interface between extreme poverty and
environmental degradation . His addressing of tenure and management
systems, however, provides a starting point for the argumentations in this
paper, as it explores critical and, to date, unresolved questions in the
environmental management (conservation) and socio-economic development
fields. From a frontline perspective, the point of confluence between the theory
for Environmental Humans Rights and their substantiation, through legal and
judicial mechanisms is the drive towards Sustainable Development, which
brings together CPRs through Good Governance Principles and ESCRs through
the MDGs, which are addressed by various approaches to development from
One Health, to Disaster Risk Reduction, to the Sustainable Use of Natural
Resources and Human Security. The common objective is, of course,
environmental protection, but history has shown that the drive to protect the
environment and its resources per se is not sufficient in the face of human
dependency on them within the current politico-economic system.

The CPRs route to Environmental Human Rights


Although often referenced to the various spheres of government only,
governance is defined as a process of decision-making and implementation,
applicable to any institution: public, private, civil society. It is funded on four
principles: accountability, efficiency, transparency and effectiveness. Good
governance, therefore, is a working system, the sustainability of which is given
9
According to Mushkat (see note 6) the series of essays published by Boyle and
Anderson in the mid 1990s were the first contextualization of the need for
Environmental Human Rights. Similarly Hancock (2003) and Hayward (2005) have
rationalized and substantiated this claim. See notes 8, 9 and 10 of Mushkats paper.
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by the abidance to the four principles above, with the understanding that a
system that is transparent and promotes direct and indirect accountability is by
default efficient and effective. The application of good governance principles in
the human rights discourse allows for a more practical interpretation of CPRs
that focuses on access to information and participation in decision-making.
These are defined as procedural substantive top-down rights which, together
with the basic human freedoms, should be implementable without placing
governments and their institution under a delivery pressure 10.
CPRs are rooted in international treaties, declaration and conventions, which
address both human rights and environmental rights. Principle 10 of the 1992
Rio Declaration on Environment and Development establishes this connection
clearly.
Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level. At the national level, each individual
shall have appropriate access to information concerning the environment
that is held by public authorities, including information on hazardous
materials and activities in their communities, and the opportunity to
participate in decision-making processes. States shall facilitate and
encourage public awareness and participation by making information widely
available. Effective access to judicial and administrative proceedings,
including redress and remedy, shall be provided11.

In the European context, Principle 10 had already been addressed by Art. 10 of


the European Convention for the Protection of Human Rights and Fundamental
Freedoms, following the guidelines of the 1948 Declarations and setting the
example for other regional Conventions. However this principle, which
addresses CPRs and Good Governance, was formalised in 1998 with Aarhus
Convention on Access to Information, Public Participation in Decision-Making

10
Shelton states very clearly that procedural human rights linked to environmental
protection receive more attention than do substantive environmental rights in legal
instruments, jurisprudence and in doctrine (referenced supra note 3, p. 90). Ssenyonjo
(referenced supra note 3) is of the same opinion and both link this facility in relation to
the fact that procedural human rights are those CPRs stemming from the events of the
Second World War and should be enshrined in any modern state institution. The right of
participation and access to information, however, is relatively modern and provides an
interesting case for EHRs because of its importance in the evaluation of cases related
to environmental rights, through the Vienna Convention on the Law of Treaties (23 May
1969) 1155 UNTS 331 (VCTL), as described by Shelton (referenced supra note 3, pp. 92-
97.
11
Extract from, UN General Assembly, Report of the United Nations Conference on Environment
and Development, Annex 1, Rio Declaration on Environment and Development, UN Doc.
A/CONF.151/26 (Vol. I), 12 August 1992.
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and Access to Justice in Environmental Matters. Unique in its framework and
contents, this is the only international and regional convention that addresses
the Principle 10 directly and fully, by providing the EU judicial system with an
additional instrument to evaluate environmental crimes with a human rights
approach.
The same principles apply to environmental management and, through national
legislation (where existing), become judiciable thus allowing the offended
parties to apply to the relevant adjudicating bodies. The

The legacy of Rio as failure to develop environmental human rights

The first Rio Summit on Environment and Development was considered,


globally, the first stepping stone towards the implementation of the Sustainable
Development principles set by the Brundtland Report. The Principles,
conventions and action plans that came out of the first meeting in 1992 were
supposed to set the pace for the provision of a more equitable and
environmentally safe world, with a special focus on developing countries. The
summit, the decision-makers attending it, however, failed both their
constituencies: people and nature. This is due to the failure, perpetrated in the
following summits, to acknowledge and address a fundamental truth: if human
and environmental rights continue to be separated, the goals set by Rio and
other related international conventions and treaties will remained
unachievable.

The case for the connection between human and environmental rights is not
new, yet has hardly been touched by modern commentators. Even when
addressed, the angles of discussions have failed to converge the key historical
and modern questions posed by the reality of law and governance.

Conclusions

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