Protection of the Environment in Human Rights Treaties

Examine and critically assess how protection of the environment has been incorporated into ONE of the following regional human rights treaties and critically assess how successful this has been: African Charter on Human and Peoples’ Rights

INTRODUCTION

The African Charter on Human and Peoples’ Rights, dubbed; (the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in Africa, adopted on 27 June 1981,[1] and became operational on 21 October 1986.[2] The Charter established the African Commission on Human and Peoples’ Rights (the Commission).[3] The Protocol Establishing the African Court,[4] was adopted on 9 June 1998 and entered into force on 25 January 2004.[5]

It is understandable that human rights and the environment are intrinsically interwoven. For one thing, the life and the personal integrity of each human being depend on protecting the environment.

On the other hand, environmental protection can often be implemented properly when human rights are respected. However, international environmental law hardly mentions the right to environments, since it is being relegated and as seen in most literature.[6]

This course work will examine and critically assess how protection of the environment has been incorporated into the African Regional Human Rights Treaty and critically assess how successful this has been. In examining how the treaty has fared in the protection of environmental rights, the course work shall look at the link between human rights and environmental rights, the implementation and enforcement mechanism under the African Charter on Human and People’s Right, with particular focus on the Ogoni case in Nigeria and the Ogiek indigenous peoples cases (“Kenya”) decided by the African commission and the African Human rights court, respectively, concerning the interpretation and application of the right to environment, strength and weaknesses of these mechanism and conclude by making necessary recommendation for reforms.

CONCEPTUAL FRAMEWORK

Meaning of the term environmental rights:

To secure effective implementation, “rights” must be determinate in scope and consistent in formulation. This brings us to the question, should “substantive environmental right” be defined, what dimensions of the environment are to be protected, what level of environmental changes is acceptable[7]?  It is obvious that the precise meaning of the right to environment is not ascertainable. ‘‘Different expressions and adjectives are ascribed, such as decent, viable, ecologically balanced, clean, healthy, and sustainable environment are frequently used when referring to environment[8].

In view of the challenges in having a satisfactory and generally acceptable definition of the substantive environment under the African Charter, it is being advocated that the best way out of this definitional quagmire, is to allow relevant authorities and courts to develop their own interpretations, as they have done for many other human rights subjects.[9]

The fact that relevant authorities and courts are in the best position to articulate the substantive content of this right is demonstrated by the African Commission in the SERAC case.” Wherein, a complaint was brought against the Nigeria alleging inter alia; the violation of Article 24 of the African Charter. ‘The case offered the African Commission the opportunity to officially interpret the content of this right. In its decision, the African Commission held that the right to a general satisfactory environment:

Requires the State to take practical measures to prevent pollution and ecological degradation, to promote conservation, and secure an ecologically sustainable development and use of natural resources, government compliance with the spirit of Article 24, must also include ordering or at least authorising independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous material and activities, and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities[10].

 Shelton, argued

Rights to a satisfactory standard of living and to social security are applied in varying measures by individual states based on general treaty provisions, according to changing economic indicators, needs, and resources. No particular standard exists, nor can such a standard be established in human rights treaties. Instead, the conventions state rights to ‘adequate’ living conditions for health and wellbeing and to social security without defining the term further. The ‘framework’ treaty permits national and local institutions to elaborate on these rights, since norms are easier to define and amend on the local level and are more responsive to the needs of the community. A similar method should be applied to give meaning to a right to environment.[11]

LINK BETWEEN HUMAN RIGHTS AND ENVIRONMENTAL RIGHTS UNDER THE ACHPR

Hiskes, have argued that environmental rights should be seen as human rights; although this argument in itself has elicited a lot of jurisprudence in support and against it. Hiskes in support of his augment, succeeded in narrowing and creating a link between human rights and environmental rights (“a green future”).[12] 

Environmental protection and human rights can be linked through different ways

In spite of the variance in perception and commencement period, human rights law and environmental law are intrinsically intertwined”.[13] “In terms of the aims and objectives which ultimately strive to produce enhanced conditions of human life.”[14] As a prerequisite, the preservation, conservation and protection of the environment requires the right to information, participation in decision making and the right to accesses to justice which are in themselves procedural human rights and well enshrined in the African Charter as an obligation of state parties[15].

These obligations as envisaged, are both substantive and procedural. These aspect reflects generally recognised procedural environmental rights. The substantive aspect of the obligations includes the prevention of pollution and ecological degradation, promotion of conservation, and securing an ecologically sustainable development and use of natural resources.[16]

The substantive obligations identify the materiality of the right that is the level of environmental quality that the States are obliged to respect, promote and protect through legislative and other necessary measures.[17]

By doing so, it can be argued that the above decision gave meaning to the substantive right to a general satisfactory environment guaranteed under the African Charter.[18]

As an outcome, protection and conservation of the environment plays a vital role to the enjoyment of human rights, including the right to life and health. Hence, many international environmental law instruments directly or indirectly recognises the linkage between human rights and environmental rights.[19]

It is obvious that the right to a general satisfactory environment under the African Charter contemplates not only the conservation of the environment and prevention of pollution and ecological degradation, but also the promotion of socio economic development.

It is also clear that the framers of the Charter by linking the right to development envisage that Africans should be able to access the resources provided by their environment in order to develop their full potential.[20]

There are essentially three features of what can be referred to as ‘environmental human rights’ which are apparent, ie, the acknowledgment that a healthy environment is a prerequisite for the enjoyment of all other human rights, frequently referred to as the ‘greening’ of existing human rights; the utilisation of procedural rights to enhance environmental protection; and the acknowledgement of a substantive right to a sustainable or healthy environment.[21]

In essence, the right as provided under the Charter is a composite right and therefore, steps taken to protect the environment in terms of this right must also promote socio economic development. It is therefore safe to argue that the right offers the linkage between the pursuit of environmental protection and socio-economic development in Africa.[22]

Because most African leaders leverage on the environment as their cash cow, it means appropriate authority and regulatory frameworks for the protection of the environment and realisation of this right is necessary if they are to enhance the achievement of sustainable development in the region. This is due to the fact that the environment strengthens the economy, of most African nations and provides many products and services that are crucial to improving sustainable living thereby linking economic benefits to enjoyment of sustainable environment and its enjoyment.[23]

For Africans, the need for a well-conserved environment that will enhance their wellbeing as well as lead to their enjoyment of the right to a satisfactory environment and other guaranteed human rights under the Banjul Charter cannot be overstated[24]

Furthermore, African governments must not take actions that is adverse to the environment affecting the realisation of the right even under the guise of promoting socio economic development in their respective countries.[25] This is due to the fact that despite the linkage of the right to development under the African Charter, the drafters, envisioned that the governments will not promote its realisation only where it will not infringe the requirements of socio economic development. In doing so, government would turn blind sight to the sufferings of communities because of the socio-economic benefit of corporate activities to the detriment of the people and the environment. This was duly upheld in the SERAC[26] case, Taskin v Turkey[27] and Nicaragua[28] case respectively. In essence, the African Charter does not require that persons or communities endure the violations of their right to a generally satisfactory environment in order to promote the development of their country

JUDICIAL AND QUASI-JUDICIAL ATTITUDE OF NATIONAL AND REGIONAL INSTITUTIONS IN PROTECTING ENVIRONMENTAL RIGHTS

The African Charter on Human and Peoples’ Rights and the Additional Protocol to the American Convention on Human Rights, are the only two regional instruments that provide for a right to a healthy environment.[29] Although, amongst the regional human rights treaties, only the ACHPR protects both civil and political[30] rights and social and economic[31] rights on an equal basis.

While there is an increasing acknowledgment of the adverse effect of environmental destruction on the right to satisfactory standard of living and the more specific rights associated with this right, such as the rights to health, food and water,[32] judicial enforcement of social and economic rights at international and regional level remains elusive. These limitations have not, however, stopped the development of a significant body of law in which the relationship between human rights and the environment has been recognized and elaborated. ‘‘The issue of human right to environment has been a subject of intense discuss at the international, regional and national arena’’[33]

It is understandable that human rights and the environment are intrinsically interwoven. For one thing, the life and the personal integrity of each human being depend on protecting the environment.[34]

The substantive right to a healthy environment lacks prominence in international human rights discourse, noting that few human rights treaties include a right to a clean, healthy and sustainable environment as a critical element.[35] Although, in recent times quite a number national legislation has incorporated substantive environmental rights into their constitution, enforcement mechanism of these provisions are weak or still lacking.[36]

ENVIRONMENTAL RIGHTS IN NATIONAL CONSTITUTIONS

In spite of the seeming progress achieved in substantive environmental guarantees in national constitutions, most of them are either non justiciable or they are subject to condition precedent, depending on their degree of enforceability.

There are those whose constitutions incorporated environmental rights in the chapter for fundamental rights and duties. This implies that such rights, “environmental rights” inclusive are binding and therefore justiciable[37].

There are also those whom although their constitution does not expressly provide for environmental rights, as enforceable right, nevertheless acquire the latter’s binding character through the use of expressions of a compulsory nature like the use of the word, “shall”[38]

And there are such constitutions like that of Nigeria that does have constitutional guarantees in her constitution as a “Fundamental Objectives” and directive “Principle of State Policy”[39] or “declaration of state policy”, but are not enforceable rights.[40]

The development of environmental rights protection recognising the need for a sustainable environment in order to sufficiently protect other human rights as well as the recognition of procedural rights in cases involving environmental protection are  very imperative. The ‘greening’ of human rights law and the acknowledgement of procedural rights in the environmental discourse as evidenced by both the African Commission and the African Courts of Human Rights in a number of cases.[41] In the celebrated case of ‘Social and Economic Rights Action Centre and Centre for Economic and Social Rights v. Nigeria’,[42] clearly evoked the responsibility of states under the African Charter.[43]

THE ENFORCEMENT AND IMPLEMENTATION MECHANISM

The implementation of any judicial or quasi-judicial pronouncement, is the central measure of its efficacy. Without it, the situation of those who should be helped by the court’s ruling becomes hopeless and frustration becomes the order of the day. Even the best and most profound jurisprudence may be deemed ineffective if not enforced, and the very essence of existence and legitimacy of the court itself may be in doubt.[44]

The African Court of Human rights was established by a Protocol to the African Charter on Human and Peoples’ Rights[45].  The African Court came into force in 2003. The African Court has both contentious and advisory jurisdiction. The two institutions function as the enforcement mechanism of the provisions of the African Charter. The decisions these bodies are binding but not enforceable due to the power exerted by state parties.  

CHALLENGE

With a none-enforceable judgements, it makes the effort of the Commission and the Courts a mere academic exercise, and by implication leading to waste of time and resources of both the state parties and the aggrieved parties.

The effort of the NGOs are also made to go to no effect.

The classification of socio-economic rights including the right to environment, as fundamental objectives and directive principles of state policies is often hinged on the argument of some scholars who claim that these rights are not amenable to judicial interpretation. Moreover, it has been argued that socioeconomic rights, including the right to environment, are positive rights that require substantial resources to ensure their implementation.[46]   

Despite the inclusion of the right to a healthy environment in many constitutions, its degree of enforcement has been lax especially in African jurisdictions. This is attributable to various reasons.[47]

Constitutional environmental law is still a new area of jurisprudence lacking judicial experience and precedent. Also public interest litigation and especially that pertaining to environmental justice is still new in young democracies. In undemocratic societies the law is there to serve the state, it is practically impossible to question the fiat of the ruling class. The judiciary in many third world countries is not trained in human rights law. Many judges are trained mostly in private law. Consequently, institutions and state apparatus for enforcement of environmental rights are still to be put in place or inexperienced where they are already in place. Also, non-state actors such as the nongovernmental organisations and civil society have only recently ventured into the pursuit of environmental rights.

Lack of adequate funding is also contributing to part of the inadequacies of the regional body. This has affected all activities of the Commission, including its capacity to do research and deliver well-reasoned legal opinions. At this critical moment most of the few technical personnel at the Commission’s Secretariat are funded by donors on a periodic basis, and usually leave the Commission at times when their experience becomes most relevant.

RECOMMENDATION FOR REFORMS

There is no doubt that the Banjul Charter have weak Implementation and enforcement mechanisms there is need for strong institutional mechanism.

There is need to encourage national governments to enshrine environmental rights as enforceable rights in their constitution.

Adopt the OECD guide line on National Contact and leverage on the gains of the African Charter.

The implementation mechanism should be well funded to optimise performance.

CONCLUSION

The right to satisfactory environment under the Banjul Charter is important to the achievement of sustainable development in Africa.  It is essential for African Union needs to adopt an inclusive and holistic approach to human rights, and effectively advance social, economic and cultural rights as well as the right to development in its promotion of an African human rights protection system. This include the factual implementation of instruments at the national level to have real impact on socioeconomic development on the people thereby introducing proper monitoring and evaluation mechanisms. The efficacy of the right in this regard is due to its complex nature as it aims not only at enhancing the protection of the environment but also at the promotion of socio-economic development.

The protection of the rights of vulnerable groups by advocating for the implementation of various commitments made by governments through the adoption of national laws and policies, and by increasing the allocation of resources to the social sector to enhance access and build capacity in institutions, particularly those that strengthen human rights protection mechanisms in African.

---

[1]  Extracts of the OAU Assembly’s decision  AHG/Dec.115 (XVI) Rev. 1 1979

[2] African Charter on Human and Peoples’ Rights (27 June 1981) (1982) 21 ILM 58 (African Charter) http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf> Accessed 12 Dec 2017

[3] Ibid Art 30,

[4] Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of the African Court on Human and Peoples’ Rights, http://www.achpr.org/instruments/court-establishment/> Accessed 12 Dec 2017

[5]Ibid,  Art 1

[6] K Hulme, ‘International Environmental Law and Human Rights’ in S Sheeran and N Rodley, Routledge Handbook of International Human Rights Law (Routledge 2013) 285, 289; D Shelton, ‘Developing Substantive Environmental Rights’ (2010) 1 JHRE

[7] D Shelton

[8] Ibid

[9]A C Kiss & D Shelton, International environmental law, Transnational Publishers , (1991) London, England : Graham & Trotman, Ardsley-on-Hudson, N.Y. pp23-24

[10]D Shelton, Developing substantive environmental rights, Journal of Human Rights and the Environment, Vol. 1 No. 1, March 2010

[11] R P Hiskes, The Human Right to a Green Future: Environmental Rights and Intergenerational Justice (Cambridge University Press, New York 2009). p128

[12]Ibid  

[13]F X Perrez, cooperative sovereignty: from independence to interdependence in the structure of international environmental law /(2000) p, 46-64

[14] P Cullet, definition of an environmental right in a human right context, Netherlands Quarterly of Human Rights (1995), p. 25

[15]African Charter Art. 9

[16] African Charter

[17]Article 22 African Charter

[18] Article 24

[19] ibid

[20] SERAC v Nigeria

[21]Hulme, n6 p89

[22] Article 24 ACHPR

[23] E Grant, International human rights courts and environmental human rights: re-imagining adjudicative paradigms,  Journal of Human Rights and the Environment, Vol. 6 No. 2, September 2015

[24] Preamble of the ACHPR.

[25] Ibid

[26]SERAC V NIGERIA

[27] Taskin v. Turkey, 42 EHRR (2006) 50

[28]Mayagna (Sumo) Awas Tingni Community v Nicaragua (2001) 79 Inter-Am Ct H R , (Ser C) August 31

[29]Article 24, African Charter, and  article 11 Additional Protocol to the IACHR

[30]First generation rights

[31] Second generation

[32] Grant, n22

[33] D Shelton, Human Rights, Health And Environmental Protection:Linkages In Law And Practice http://www.who.int/hhr/information/Human_Rights_Health_and_Environmental_Protection.pdf> Accessed 20 December 2017

[34] ibid

[35] ibid

[36]J K Bosek, Implementing environmental rights in Kenya’s new constitutional order: Prospects and potential challenges, African Human Rights Law Journal

[37]Section 24 Of The Constitution Of South Africa,  Article 39 (Environmental Rights) Constitution Of The Republic Of Angola)

[38] Constitution of Zimbabwe

[39] Constitution of Gnana

[40] Section 20, Chapter II, Fundamental Objectives and Directive Principles of State Policy

 Constitution of the Federal Republic of Nigeria 1999,( 29th day of May 1999). The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria. http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm> Accessed 13 Dec 2017

[41]Grant n22

[42] African Commission on Human and Peoples’ Rights, Comm. No. 155/96, (2001).

[43] Para53 serac case

[44] Grant, n22

[45] African Charter

[46] J.C. Nwobike. (2005) “The African Commission on Human and Peoples’ Rights and the Demystification of Second and Third Generation Rights under the African Charter”.  1 African Journal of Legal Studies 129 at 139.

[47] Constitution Ghana