Human Rights and the Environment: A Synopsis and Some Predictions

I. INTRODUCTION

Over the last fifty years or so, our understanding and, indeed, definition of human rights has evolved and expanded. Human rights are basically understood to mean those inalienable rights that we possess by virtue of being human. Human rights, therefore, are not based on one's citizenship, race or color, creed, education, or income. Human rights are, in short, universal, and must be respected by all societies and governments. As succinctly stated in the 1993 United Nations World Conference on Human Rights in Vienna, "all human rights are universal, indivisible and interdependent and interrelated."1

In 1948, the United Nations first recognized the existence of human rights, which are those freedoms, immunities, and benefits that all human beings should be able to claim as a matter of right in the society in which they live.2 More recently, the United Nations and the international community have recognized the link between human rights and the environment. In 1994, for example, Principle 2 of the Draft Declaration of Principles on Human Rights and the Environment provided that "[a]ll 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."3

As lawyers, we are trained to think in terms of rights, whether procedural or substantive, as being enforceable under law.4 And, conversely, if they are not enforceable, they do not qualify as rights as a practical matter. This is at the heart of the continuing debate in the international environmental law community regarding the distinction between "hard law" and "soft law." "Soft law" recognizes that there are certain norms that are not enforceable by an international court but are, nonetheless, presumed to have some validity. "Hard law," on the other hand, involves legal norms that are legally binding as a matter of international law and are often accompanied by mechanisms for enforcement by an international court or some other international organ/tribunal.

This article explores the contours of an emerging human right to a clean and healthy environment at the international level in various nations and in several states of the United States of America as both "hard law" and "soft law." The article identifies the meaning that this evolving right has been given in constitutions and formal international documents and by the courts of different governments around the world. It concludes that while there appears to be a growing trend favoring a human right to a clean and healthy environment - involving the balancing of social, economic, health, and environmental factors - international bodies, nations, and states have yet to articulate a sufficiently clear legal test or framework so as to ensure consistent, protective application and enforcement of such a right.

Part II of this article examines the connection between environmental justice, sustainable development, and the human right to a clean and healthy environment. Part III explores how the human right to a clean and healthy environment has been treated or understood by international organizations like the United Nations and the Inter-American Commission on Human Rights, and how it has been manifested in protocols, treaties, international instruments, and in the constitutions of various countries. Part IV examines how the human right to a clean and healthy environment has been defined and implemented in constitutions of several states of the United States. Several notable cases, which have given meaning to the human right to a clean and healthy environment, will be analyzed. Finally, the authors will attempt to reach some conclusions and hazard some predictions regarding whether this human right to a clean and healthy environment will be internationally or widely accepted as an enforceable right. In short, the authors will explore whether there appears to be a trend developing towards recognizing a human right to a clean and healthy environment as an enforceable human right, i.e. "hard law."

II. ENVIRONMENTAL JUSTICE, SUSTAINABLE DEVELOPMENT, AND THE HUMAN RIGHT TO A CLEAN AND HEALTHY ENVIRONMENT

The United States and other governments are grappling with the still evolving major public policy issues of environmental justice and sustainable development. The discussions in the domestic and international environmental law communities involve not only the definitions of these question-begging terms, but also how the definitions can be applied in real-life situations to have any validity. In order to understand and appreciate the applicability of these terms better, the authors will examine how these theoretical terms are applied in the concrete context of water. Water is a good example of the inter-play of these issues because it is a natural resource that everyone needs to survive but is nonetheless a natural resource that is diminishing on a daily basis.