Greg Maggio, Independent Consultant

Owen J. Lynch, Senior Attorney
Center for International Environmental Law

Novmeber 15, 1997
Revised Draft

I. INTRODUCTION

Connecting Human Rights, the Environment, and Economic Development

During the past several decades, there has been an observable increase in conflicts throughout the world involving human rights, economic development, and the environment. The frequency of these disputes is in large part related to current global human demographic, consumption, and pollution patterns that place unprecedented demands on the regenerative capacity of remaining ecosystems and jeopardize the welfare of vulnerable groups.

For example, many natural resources needed for economic development such as petroleum and other minerals, timber, sources of hydro-electric and geothermal energy, and land for agricultural expansion often are located in areas that are especially valuable for conservation of biological diversity and that are also inhabited by resource dependent communities, including indigenous and other long-term occupants. Recent controversies such as those involving the Ogoni in Nigeria, the Huorani in Ecuador, the Yanomami in Brazil, the Cree in Quebec Province, Canada, the Wopkaiman near the Ok Tedi mine in Papua New Guinea, the Bagobo of Mt. Apo in the Philippines, and the Amungme and Kamoro in Irian Jaya, Indonesia, testify to the often volatile and complex nature of these disputes.

Through analyzing the multidimensional nature of these disagreements, many policy-makers as well as academics increasingly perceive human rights, environmental protection and economic development objectives as complementary rather than as unrelated or opposing disciplines. Despite recent trends suggesting the contrary, economic development, however, is still largely premised on theoretical models that subordinate environmental and human rights concerns to development outcomes that can be monetarily assessed and determined. The application of these approaches has served to exacerbate global disparities between wealth and poverty within and among nations. Environmental conservation initiatives, such as those directed at protection of forests and other components of biological diversity, meanwhile, have often been indifferent or hostile to economic development, and at times have ignored human rights considerations, including the interests of local communities directly dependent on natural resources.

Until recently international human rights instruments have typically accorded minimal attention to the environment. The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Universal Declaration of Human Rights, three primary international human rights instruments, barely mention the relationship between protection of the environment and human rights. The first major international law instrument to link human rights and environmental protection objectives is the Stockholm Declaration of 1972. Its Principle 1 reads as:

"Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears solemn responsibility to protect and improve the environment, for present and future generations..."

Following Stockholm, several international and national texts acknowledged the connection between environmental protection and human rights. No global human rights instruments to date, however, include a "right to environment". The 1993 Vienna Declaration, which is the most recent international statement on human rights in general, does not recognize an explicit human right to environmental protection, although it does link the environment to realization of the right to development. In this context, international human rights instruments lag behind current international attitudes, as well as many nation states which have included a right to a healthy environment in their national constitutions and laws.

The growing realization that environmental, economic, and human rights concerns are linked results from the failure of previous attempts to deal separately with the issues presented by these phenomena. Recent scholarship is also providing new insights into the systemic inter-relationships among the issues raised. As such, there is now greater realization of the multi-dimensional nature of conflicts which were previously considered solely or primarily as "developmental", "environmental" or "human rights" matters.

One new insight is that controversies between what appear to be "environmental" and "development" interests are often founded on problems of language and perception. This perspective argues that environmental protection is really a form of development, and that all development activities, including environmental conservation are "...attempts to improve the quality of specific human environments and represent efforts to manipulate the resources of environmental systems to that end." Clashes between "environmental protection" and "economic development" initiatives therefore are value conflicts between two (or more) development interests. This approach could be extended to human rights objectives in arguing that the protection of human rights is in fact a development interest, and therefore is not antithetical to "development" either as conservation, or as an industrial/ infrastructural activity.

Another realization is that ignoring the environmental and human rights aspects of socio-economic development can threaten the long-term viability of development efforts. The World Bank has responded to this challenge by expanding the scope of its agenda for promoting economic growth through increasingly addressing human rights-related problems that negatively impact on development initiatives in project countries.

The Earth Council's Environmental Ombudsman Function

Established in 1992 to promote the agenda agreed at the United Nations Council on Sustainable Development (UNCED) in Rio de Janeiro, the Earth Council intends to promulgate and ratify a Charter of Environmental Rights. Once enacted, the Charter will establish valuable international standards and principles linking human rights, the environment and economic development. This document could provide a useful normative framework for addressing multi-dimensional disputes impacting on human welfare and general environmental quality.

The Charter will also provide key guidance for the Earth Council's yet-to-be-established Environmental Ombudsman Function (ECO). The ECO will be asked to address controversies which have a transnational dimension, which involve human rights, environmental protection and economic development issues, and for which there are no other adequate means of redress or remedy.

Absent official promulgation of the Earth Charter, however, there are still many existing and emerging international laws and norms to guide the ECO, including an array of authoritative instruments that can be invoked, synthesized, and adhered to as guiding principles. There are also several emerging trends as well as gaps in the current normative framework that should be addressed by the ECO.

This paper aims to identify on a preliminary basis, international laws, legal principles and other normative standards for the ECO to use in its review of controversies involving the aforementioned elements. It places particular emphasis on emerging connections between international human rights and environmental law. Other related and often overlapping laws and normative standards concerning economic, social, and cultural development are also identified and analyzed.

In addition to providing the ECO with an overview of existing and emerging normative standards to consider when addressing its presumed mandate, this paper also seeks to provide a reference point for subsequent research and analysis regarding the ECO's functions.

Major international adjudicatory tribunals, such as the International Court of Justice, are statutorily restricted to reliance upon international law when making their decisions. The ECO, however, will likely have much greater flexibility regarding the range of permissible standards to utilize in making its determinations. It will be able to invoke not only what is strictly treated as international law, but also other normative materials, which may be recognized as international law in the future, and which at present inform and suggest alternative viewpoints and values.

Although it is not anticipated that the ECO will function as a formal legal or administrative tribunal, the ECO will presumably be charged with investigating and mediating the various types of controversies outlined above. The ECO will need normative guidelines and standards to assure that it operates effectively, wisely, and with integrity.

In order to provide a comprehensive normative "road map" for the ECO, the paper begins by offering an overview of international law processes, including a brief description of policy science and its applicability to the ECO's prospective work, and a brief survey of theories concerning objects, subjects and participants in international law, meanings of the terms "law" and "norm," and the differences between "hard" and "soft" law, and principles and rights.

Second, the paper identifies and examines international laws concerning sustainable development, and in particular the emergence of a "tripartite approach" that integrates concerns about the environment, human rights, and economic development. Third, the paper lists and describes recognized existing (and putative) international legal rights, including permanent sovereignty over natural resources, the right to development, the right to adequate/healthy environments, and the right to participation.

Lastly, the paper discusses and analyzes five existing and developing international law principles concerning the environment, human rights, and economic development. These include: 1) inter- and intra-generational equity; 2) common but differentiated responsibilities; 3) equitable sharing; 4) a state's right to permanent sovereignty over its natural resources and concomitant duty not to cause harm to areas beyond its national jurisdiction (Stockholm Principle 21); and, 5) the precautionary principle. Specific issues that cut across these normative standards are also analyzed. These include inadequate attention to gender, consumption patterns, pollution, local communities, cultural values, transnational corporations, and the traditional overemphasis on the role of nation-states, usually at the expense of non-state actors, in the development of international legal structures and institutions.

Proceed to Part II

For more information, contact: Owen J. Lynch (olynch@ciel.org)