Human Rights, Environment, and Economic Development: Existing and Emerging Standards in International Law and Global Society

III. Existing (Putative) International Rights

Five existing international norms are especially relevant for addressing controversies embracing the convergence of human rights, economic development and environmental protection. These norms are: 1) self-determination; 2) permanent sovereignty over natural resources; 3) the right to development; 4) the right to environment; and, 5) participation. Of these, the international community in general acknowledges only self-determination and permanent sovereignty over natural resources as forming part of customary international law and specifically of international human rights law.

There is considerable international support for the proposition that the right to participation, the right to development, and the right to environment are also international norms within the context of human rights law. This support is evidenced through the practices of nation states, declarations, resolutions and other official acts of organs of the United Nations, as well as research undertaken by international law scholars. The right to development can also be seen as a fully fledged and recognized international human right, despite concerns about its content and status that are expressed by the United States and some other countries.. There is also a distinct possibility that the right to development will be fused with the more amorphous "right to environment" to form a newly recognized international right to sustainable development.

Self Determination and Permanent Sovereignty over Natural Resources

The right to self-determination and permanent sovereignty over natural resources are rooted in the calls for self-determination and later for permanent sovereignty over natural resources demanded by colonial peoples and newly-independent developing countries, especially in the post-World War II period. These rights are bedrock principles upholding the current international law system wherein nation states are the primary actors and objects in international law. They are embedded in Article 1, paragraphs 1 and 2, of the International Covenant on Economic, Social and Cultural Rights of 1966. There is also there an extensive literature on their content and status and, therefore, they will not be discussed at any length in this paper.

Right to Development

The right to development is generally classified as a third generation or solidarity right within the human rights framework. Its origins can be found in the right to self-determination and permanent sovereignty over natural resources. The Charter of the United Nations includes pursuance of development as among the goals of its agenda for economic and social cooperation, and under the Charter, states pledge to contribute within the UN system to the promotion of development and respect for human rights. Thus from the UN's inception, development and human rights have been closely identified.

One of the first articulations of development as a human right is contained in the 1969 Report of the United Nations Secretary General entitled "The International Discussion of the Right to Development as a Human Right". That document called for: "... promotion of respect for human rights in general including the human right to development...[which]...should be part of a new international development strategy." The new development strategy was the New International Economic Order ("NIEO") discussed elsewhere in this paper. In 1984, an Indian legal scholar characterized the right to development as an "evolving right." Since that time, many references to a right to development have been recorded in international texts.

The status of the purported right to development as a human right has subsequently been reported or affirmed in a number of United Nations instruments including General Assembly resolutions and conference declarations. It has also been acknowledged as a human right in reports of the International Law Association, and in draft model legal instruments such as the International Covenant on Environment and Development developed by the IUCN ("IUCN Draft Covenant"). It has not been expressly articulated in traditional "hard law" international conventions such as the United Nations International Covenant on Economic, Social and Cultural Rights of 1966. Higgins considers this a weak point in its status as a recognized human right by the international community.

The right to development, however, is contained in one regional convention, the African Charter on Human and Peoples' Rights. It is also found in the preamble to the 1994 Draft United Nations Declaration on the Rights of Indigenous Peoples, and is the title of Article XXI of the Draft of the Inter-American Declaration on the Rights of Indigenous Peoples. Additionally, the preamble to the Draft Principles on Human Rights and the Environment, which is intended to "lay out the framework for a holistic rights-based approach to environmental protection",says that the document is guided by the United Nations 1986 Declaration on the Right to Development, recognizing "...that the right to development is an essential human right..." Furthermore, former President Singh of the International Court of Justice has opined:

"...a right to development is a recognized principle of international law beyond dispute. It is founded on the principles of the U.N. Charter, namely sovereign equality of States, non-discrimination, the principle of inter-dependence and of international co-operation."

Singh perceives a right to development in the context of North-South dynamics rather than only as an individual human right. His view implies that inequities in political and economic relationships between nation states interfere with efforts to attain and ensure the right to development as a group right of national populations as well as an individual human right.

During the past twenty years, there has been considerable discussion regarding the exact nature of the right to development vis-a-vis international law and specifically human rights. The commentary to the 1995 IUCN Draft Covenant on Environment and Development states: "...[a]lthough international consensus has not yet crystallized over the precise content of the right to development, the Draft Covenant reflects the view that full consensus will emerge over time."

Outstanding concerns about the right to development include: whether it is a collective or individual human right; whether it is exercised by states and or individuals and groups; which states or other entities are responsible for ensuring the realization of the right; whether it is a distinct human right or really a synthesis of other human rights; and even whether there exists a right to development as a legal right under international law.

Higgins, as noted above, has contrasted what she sees as major ambiguities in international instruments and international behavior concerning the content and implementation of the right to development with the treatment accorded by nation states and UN organs toward the right to food. She perceives the collective right to food as an existing "present right" rather than as a "long-term aspiration," a term she identifies with the right to development. Factors which Higgins notes as weighing in favor of characterizing the right to food as a present right include: 1) its inclusion as a right in the International Covenant on Economic Social and Cultural Rights, 2) the fact that under the Covenant, states are required to specify in considerable detail their programs for progressive achievement of the right; and 3) the UN Human Rights Committee's elaboration of the content of the right and the means for achieving.

The United States Government, in contrast, has severely qualified its acceptance of the right to development in international law. At the UNCED, it attached an interpretative statement to the Rio Declaration written to negate the existence of a right to development:

"The United States does not, by joining in consensus on the Rio Declaration, change its long-standing opposition to the so-called ‘right to development'. Development is not a right. On the contrary, development is a goal we all hold, which depends for its realization in large part on the promotion and protection of human rights set out in the Universal Declaration of Human Rights."

The United States, however, has not attached similar reservations to affirmations of the right to development in the subsequent Vienna or Copenhagen Declarations. Since the drafting of the Vienna Declaration in 1993, the State Department now recognizes the existence of a right to development, but only insofar as it relates to the right of each individual to develop fully to his/her potential. It does not accept the right to development as a right of states to demand foreign assistance or to qualify protections of civil and political rights.

Other countries and groups of experts, such as the International Law Association ("ILA"), in contrast, have accepted the existence of a right to development in both its group and individual dimensions. In its 1994 report, the ILA sought to identify the means by which to elaborate the content of the right. Among its findings were that: 1) the right to development should be elaborated in the context of all human rights, both individual and collective, and that this entails giving "priority to the fight against absolute poverty and to attuning the right to self-determination of peoples to the promotion and protection of civil, cultural, political and social rights;" and, 2) the right to development also "aims to integrate the right to a healthy environment in a framework of sustainable development." The ILA report provides a useful authoritative statement on the content of the right to development, and emphasizes the link between development as a collective human right and the values of a civil society, namely good governance, whereby people have the ability "...to limit government authority and to influence policy on the basis of universally recognized human rights."

In the Copenhagen Declaration of the 1995 World Social Summit, governments "committed" themselves to "create a framework for action...to [p]romote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all, including the right to development..." The declaration added that: "[r]ecognizing that empowering people, particularly women, to strengthen their own capacities is a main objective of development..." The Copenhagen Declaration also pronounced that although states have the primary responsibility, it also stressed that the "...international community, the United Nations, the multilateral financial institutions, all regional organizations and local institutions and local authorities, and all actors of civil society need to positively contribute their own share..." to the achievement of the goals set out.

Notwithstanding the criticisms expressed by international law scholars, and the objections made by the United States and other countries at the UNCED, an overall consensus has been forged that there is an internationally recognized right to development. A legal experts group meeting under the auspices of the UN Department for Policy Coordination and Sustainable Development in 1995 concluded that "[whereas] some governments have opposed the existence of a right to development as a human right or principle of international law...[and] others considered it as of primordial importance...in recent years this divergence of opinion seems to be diminishing."

All legal instruments that have used the term "right to development," however, are arguably "soft- law" , and thus would not be considered binding texts in a traditional legal context. Yet, these instruments, such as the Vienna and Copenhagen declarations, record the international consensus of states and arguably reflect legally binding positions. That these declarations posses significant normative weight is evidenced by the very detailed written interpretative statements provided by the United States and other states to declarations such as the Rio Declaration.

There are several possibilities regarding the characteristics of the content of the right to development. First, is that the right to development is the means by which civil and political rights of individuals are realized; therefore it is a prerequisite to the enjoyment of other human rights. Second, the right to development is a "synthesis" of existing human rights, with its content flowing from the 1948 Universal Declaration of Human Rights and the 1966 UN Covenants. Its substance, therefore, includes existing individual and collective human rights recognized in the above instruments, such as the freedom of expression and religion and the right to adequate housing, living conditions, work, and food. Third, the right to development concerns the basic right of each person to life and the right to develop his/her potential "so as to live in dignity." Fourth, in the specific context of indigenous peoples, the right to development obliges nation states to "... recognize the right of indigenous peoples to decide democratically what values, objectives, priorities and strategies will govern and steer their development course..." Each of these examples sheds light on the meaning of the right to development at present, and suggests that it is a multi-faceted right.

Correlative Rights of the Right to Development

Assuming the existence of the right to development, the above instruments and perspectives suggest that in addition to constituting a distinct human right, the right to development comprises a number of correlative existing human rights. As a third generation or solidarity right, it could be argued that the content of the right to development is reflected in all of its correlative rights. The realization and protection of these correlative human rights appear to be essential for the effective enjoyment of the right to development. Each of the following correlative rights articulates important aspects of the right to individual personal development as well as a collective right of peoples to develop.

The correlative rights which appear to be particularly germane to the ECO's work include the following:

Right to an Adequate Standard of Living. The right to an adequate standard of living encompasses "the right to adequate food, clothing, housing and to the continuous improvement of living conditions," as well as "medical care and necessary social services..." This right thus includes the existing right to food discussed above and noted by Higgins in her analysis of collective rights.

In addition to inclusion in the UNDHR and ICESCR, the rights comprising the right to an adequate standard of living are also included in more recent instruments such as the United Nations Convention on the Rights of the Child of 1989.

A right to health, which also falls under the right to an adequate standard of living, is now linked with maintenance of environmental quality. This is suggested in Principles 7 and 8 of the Draft Principles on Human Rights and the Environment. Principle 7 states that "All persons have the right to the highest attainable standard of health free from environmental harm. Also, Article 12 of the IUCN Draft Convenant, which also articulates the States' responsibility as a facilitating agent:

"Parties undertake to achieve progressively the full realization of the right of everyone to an environment and a level of development adequate for their health, well-being and dignity."

Right to Cultural Integrity. The United Nations Declaration on Human Rights ("UNDHR") and the International Covenant on Economic Social, and Cultural Rights ("ICESCR") both recognize the right of every human being to take part in cultural life. In addition, the International Covenant on Civil and Political Rights ("ICCPR") recognizes the rights of minorities and individuals belonging to minorities "to enjoy their own culture, to profess and practice their own religion , or to use their own language." International Labour Organization (ILO) Convention No.169, concerning Indigenous and Tribal Peoples in Independent Countries, which is in force, requires governments to guarantee respect for the integrity of indigenous peoples, including "the full realization of the social, economic and cultural rights of these peoples with respect for their social and cultural identity..."

The United Nations Human Rights Committee recognizes that in the context of indigenous communities, "traditional land tenure is an aspect of the enjoyment of culture protected under Article 27 of the ICCPR". Additionally, ILO Convention No. 169 expressly states that "..the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized." It also expressly mandates that the rights of indigenous peoples "to the natural resources pertaining to their lands shall be specially safeguarded."

The Inter-American Commission on Human Rights Draft Inter-American Declaration on the Rights of Indigenous Peoples ("IADRIP") identifies "property" as an aspect of cultural integrity. Property in this context is understood to include traditional lands, including sacred forests and other sites, which are recognized as vital to the maintenance of cultural integrity, as well as lands required by communities to promote their livelihood and development. Other cultural property belonging to indigenous communities, which is protected under the right to cultural integrity, includes religious artifacts and other objects, including archaeological sites and materials.

Additionally, for indigenous communities, it would appear that cultural integrity also encompasses recognition and control of cultural and intellectual property . This property would include human and other biological genetic resources, such as "seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, designs and visual and performing arts.."

Right to Education and Right to Adequate Information. The right to education has been recognized in major international human rights instruments. It is articulated in Article 26 of the UNDHR and in Article 13 of the ICESCR. Both of these documents specify parameters for the fulfillment of the right, including that it shall be free at the elementary stagesand provide details for its realization. The ICESCR requires states to "work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years to be fixed in the plan..." within two years of their accession to the instrument.

The necessary relationship between the right to education and the right to development is affirmed in the UNDHR's directive that education "...shall be directed to the full devellopment of the human personality and to the strengthening of respect for human rights and fundamental freedoms." The United Nations Convention on the Rights of the Child has further elucidated the importance of the right to education in the context of individual development and also in relation to facilitating an ethic of environmental awareness and respect. In the specific context of indigenous communities, the right to education has been expressed to include the right of such peoples "to establish their own educational institutions and facilities."

The related right to access to adequate information has been more recently articulated, at the international level, in model and draft instruments as well as non-enforceable texts. It has been most clearly identified in the context of environmental decision-making. A right to access to environmental information "has been increasingly recognized as a critical precondition to public participation in environment and development decisions."

This link between public access to adequate information and maintenance of environmental quality has been squarely addressed in Priniple 10 of the Rio Declaration which avers that "... each individual shall have appropriate access to environmental information that is held by public authorities". This right of persons to access information is also incorporated in Article 12 of the IUCN Draft Convenant and the Draft Principles on Human Rights and Environment. At the national level, the United States has enshined a right to access to information in the 1986 Emergency Planning and Community Right-To-Know Act. Significantly, along with the right to education, the relevant texts aver that the state is obligated to create necessary conditions for the public's realizaiton of this right. This feature of the right is contained in the World Heritage Convention and in the Draft Principles on Human Rights and the Environment: "The information shall be timely, clear, understandable and available without undue financial burden to the applicant". One appropriate means for facilitating this right is through adequate implementation, and by public authorities making available environmental impact assessment processes.

Also, multilateral development organizations, such as the World Bank are setting international standards in facilitating public access to information. The World Bank has established a Public Information Center containing information on Bank projects as of January 1994.

Right to Adequate/Healthy Environment

The so-called "right to environment," or its variations such as a right to a "healthy environment," has been widely discussed during the past two decades, and particularly in the period immediately preceding the UNCED in 1992. Hohmann has stated that "...whether a fundamental right of all human beings to an environment adequate for their health and well-being has to be acknowledged in international law, is disputed. It is at least a human right de lege ferenda."

Although neither of the international human rights covenants (the ICESCR and the ICCPR) includes a "right to environment," the term has been incorporated in one regional human rights covenant, in several environmental agreements and in a variety of draft international legal principles and instruments. The Hague Declaration of 1989 was one of the most important pre-UNCED international statements connecting environmental degradation to human rights issues. It declared that environmental harm threatens "the right to live in dignity in a viable global environment."

Interest in and support for recognizing a right to environment has continued to develop momentum since the UNCED. A major development was publication of the 1994 Final Report on Human Rights and the Environment, of the Commission on Human Rights Sub-commission on Prevention of Discrimination and Protection of Minorities, more generally known as the "Ksentini 1994 Report." That document discussed the legal foundations of a right to a satisfactory environment. The first legal instrument to propose a right to a healthy environment is the draft legal principles of the Experts Group of the World Commission on Environment and Development ( "WCED") in 1986. Principle 1 of the draft principles provides that: " [a]ll human beings have the fundamental right to an environment adequate for their health and well-being."

A right to a healthy environment is also included in UNEP's 1993 Proposal for a Basic Law on Environmental Protection and the Promotion of Sustainable Development. It includes within its "Governing Principles" the "....right of present and future generations to enjoy a healthy environment and decent quality of life..." The Draft Principles on Human Rights and the Environment (which is attached to the 1994 Ksentini Report states that " [a]ll persons have the right to a safe and healthy working environment." The IUCN draft Covenant on Environment and Development requires that "Parties undertake to achieve progressively the full realization of the right of everyone to an environment and a level of development adequate for their health, well-being and dignity." The IUCN draft also avers that "[a]ll persons have a duty to protect and preserve the environment...", thus recognizing that the "right to environment" entails both a right for everyone to benefit from the environment as well as an obligation for all to manage it sustainably.

With the exception of the San Salvador Protocol, none of the above-mentioned documents which include a right to environment are enforceable legal texts in the traditional sense; but they suggest the direction in which international law may be heading and could form the foundations for future binding international agreements. Thus they are relevant in determining the existence of a normative, if not legal, right to environment. It is also noteworthy that a right to environment has been included in many national constitutions around the world, and also in the specific constitutions and laws of a number of states within the United States.

Shelton has rightly pointed out that "...virtually every text concerning a right to environment qualifies the word environment with adjectives describing a particular kind or quality of protected environment..." The term "right to environment," therefore, is imprecise. This fluidity in terminology renders it difficult to say whether there is one "right to environment", or in fact several related rights to environment, namely a "right to a healthful and safe environment", a "right to an environment...adequate for...health, well-being and dignity", a "right to a healthy environment" or a "right to a secure, healthy and ecologically sound environment". Despite the stylistic variations, each of the articulations contains an identifiable core: that the human right regarding the environment concerns affording each person a right to an environment that supports his physical and spiritual well-being and development. The type of environment suggested in several of the instruments is one which is ecologically sound, an imprecise term, but which would likely proscribe the dumping of toxic wastes in areas inhabited and utilized by local populations, the degradation of forests, depletion of biodiversity including genetic variation of agricultural crops, as well as levels of air and water pollution which compromise human health in urban centers.

Higgins has perceived a potential conflict between a right to development and a right to environment. She observed that "[t]here is frequently an environmental price to pay for development....," including potential clashes between citizens' invocation of a right to a safe environment and state arguments for a right to economic development. Already, clashes sometimes occur when some nation states, typically under the guise of national development, sanction unsustainable logging, mining and infrastructural development, and fail to provide support for the political and civil rights of local communities marginalized by these activities.

Ultimately, achievement of the right to development is dependent upon the realization of all human rights, and development is dependent upon maintenance and enhancement of environmental and social quality. Under the concept of sustainable development, both the right to development and the right to environment are complementary aspects of each other. It is too uncertain at the moment to state that a right to sustainable development has been recognized in general by the international community. Acceptance of the existence of both a right to development and a right to environment, however, would create the necessary conditions for the emergence of a new right to sustainable development.

Continued

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