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The Public Health Impact of Global Environmental Problems and the Role of International Law

Published online by Cambridge University Press:  06 January 2021

Sumudu Atapattu
Sumudu Atapattu*
Affiliation:
Institute for Legal Studies, University of Wisconsin-Madison Law School, USA; Human Rights and Poverty Eradication Program of the Centre for International Sustainable Development Law, Montreal, Canada; Colombo, Sri Lanka
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Extract

For several decades now we have been acutely aware of the increasingly intensifying effect that environmental degradation has on human health. While many of these effects are localized, given the increasingly global nature of environmental problems their impact on human health has also become global in dimension. Health experts are becoming more and more concerned about the potential impact on public health if no precautionary measures are taken to deal with these global environmental problems.

Of course, environmental problems have consequences beyond their public health impact. The emphasis in this Article on public health should not be taken as advocating an anthropocentric approach to environmental problems. This Article focuses on public health as a way of drawing attention to the enormity of the problem.

Type
Article
Information
American Journal of Law & Medicine , Volume 30 , Issue 2-3 , June 2004 , pp. 283 - 304
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2004

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References

1 The need for precautionary measures is particularly warranted with regard to global environmental problems where scientific evidence as to the precise nature of the problem may be lacking.

2 U.N. Charter art. 55.

[T]he United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international, economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Id.

3 Steven Jamar, The International Human Right to Health, 22 S.U. L. REV. 1, 20 (1994); see also Satvinder, Juss, Global Environmental Change: Health and the Challenge for Human Rights, 5 IND. J. GLOBAL LEGAL STUD. 121 (1997)Google Scholar.

4 The World Health Organization Constitution contains several principles which are basic to the happiness, harmonious relations, and security of all people. Among these are the following principles: Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition. WHO CONST. pmbl.

5 Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services . Universal Declaration of Human Rights, G.A. Res. 217, Art. 25, U.N. Doc. A/810, at 71 (1948).

6 Jamar, supra note 3.

7 Id.

8 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. GAOR, Supp. No. 16 at 49, U.N. Doc. A/6316 (1967) [hereinafter ICESCR].

9 Id. at art. 12.

10 The State Parties have undertaken to guarantee that the rights in the Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Id. at art. 2(2).

11 The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant. Id. at art. 3.

12 Jamar, supra note 3.

13 ICESCR supra note 8, at art. 2(1).

14 International Covenant on Civil and Political Rights, G.A. Res. 2200A(XXI), U.N. GAOR, 21st Sess., at 52, U.N. Doc. CCPR (1966) [hereinafter ICCPR].

15 See generally Upendra, Baxi, What Happens Next is Up to You: Human Rights at Risk in Dams and Development, 16 AM. U. INTL L. REV. 1507 (2001)Google Scholar.

16 See generally Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, ECE U.N. Doc. ECE/CEP/42, reprinted in 38 I.L.M. 517 (1998) [hereinafter Aarhus Convention].

17 United Nations Millennium Declaration, G.A. Res. 55/2, 55th Sess., U.N. Doc. A/res/55/2 (2000).

18 It was in the last sixty years that Europe started experiencing adverse consequences of industrialization in the form of acid rain and the realization that activities in one state could affect the environment in another hundreds of miles away.

19 See Dinah Shelton, Human Rights, Health & Environmental Protection: Linkages in Law & Practice, HEALTH & HUMAN RIGHTS WORKING PAPER SERIES NO. 1 (2002).

20 Committee on Economic Social and Cultural Rights General Comment 14, ¶ 11, U.N. ESCOR, 22d Sess., U.N. Doc. E.C.12/2000/4 (2000).

21 Id. ¶ 4.

22 See Commission on Human Rights, Executive Summary, U.N. ESCOR, 59th Sess., U.N. Doc. E/CN.4/2003/58 (2003).

23 Id.

24 Id. ¶ 8.

25 Paul Hunt, The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, U.N. Economic and Social Council, 59th Sess., Agenda Item 10, at 8, U.N. Doc. E/CN.4/2003/58 (2003).

26 Id.

27 Id. at 11.

28 Id.

29 Id. at 12.

30 Stockholm Declaration of the United Nations Conference on the Human Environment, G.A. Res. 2997, U.N. GAOR, 27th Sess., U.N. Doc. A/Conf.48/14/Rev/1, reprinted in 11 I.L.M. 1416 (1972) [hereinafter Stockholm Declaration].

31 Id.

32 United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, Principle 1, U. N. GAOR, 47th Sess., U.N. Doc. A/CONF.151/5 (1992), reprinted in 31 I.L.M. 874, 876 [hereinafter Rio Declaration].

33 Id.

34 See, e.g., Sumudu Atapattu, Sustainable Development, Myth or Reality?: A Survey of Sustainable Development Under International Law and Sri Lankan Law, 14 GEO. INTL ENVTL. L. REV. 265 (2001); Krista, Singleton-Cambage, Reinventing and Reinvigorating the Earth Charter: A Civil Society Movement, 1997 COLO. J. INTL ENVTL. L. & POLY. 87, 95 (1997)Google Scholar; David, A. Wirth, The Rio Declaration on Environmental and Development: Two Steps Forward and One Back, or Vice Versa?, 29 GA. L. REV. 599, 614-615 (1995)Google Scholar.

35 United Nations Conference on Environment and Development, Agenda 21: Programme of Action for Sustainable Development, Agenda 21, ch. 8.7, U.N. Doc. A/Conf. 151/4 (1992).

36 Id.

37 Report of the World Summit on Sustainable Development, Plan of Implementation, at 8, A/ CONF.199/20 (2002), revised by A/CONF.199/20/Corr.1 (2002) available at http://www.johannesburgsummit.org/html/documents/summit_docs.html.

38 Id. ¶ 7(f).

39 Id. ¶ 8.

40 Id. ¶ 53.

41 Id. ¶ 54(a).

42 Id. ¶ 54(k).

43 Id. ¶ 56.

44 Id. at 3.

45 Id. at 123.

46 See, e.g., Backward on Global Warming, N.Y. TIMES, Feb. 16, 2002, at A18, (President Bush renounced the Kyoto Protocol, which mandated lowering greenhouse gas emissions, and instead came up with his own plan that would require little emission reduction effort from U.S. businesses).

47 See, e.g., EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY AND INTERGENERATIONAL EQUITY (1989).

48 OUR COMMON FUTURE: REPORT OF THE WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT 33 (1987).

49 Id.; INTERNATIONAL COUNCIL FOR LOCAL ENVIRONMENTAL INITIATIVES, ENERGY FACT SHEET, available at http://www.iclei.org/EFACTS/GLOBWARM.HTM (last visited July 8, 2004).

50 OUR COMMON FUTURE, supra note 48; U.S. ENVIRONMENTAL PROTECTION AGENCY, GLOBAL WARMINGIMPACTS, COASTAL ZONES, available at http://yosemite.epa.gov/oar/globalwarming.nsf/content/ImpactsCoastalZones.html (last modified Jan. 7, 2000).

51 OUR COMMON FUTURE, supra note 48; see also, WORLD HEALTH ORGANIZATION, CLIMATE AND HEALTH, FACT SHEET NO 266, available at http://www.who.int/mediacentre/factsheets/fs266/en/ (last revised Dec. 2001) (an assessment prepared by the task group on behalf of the WHO, the World Meteorological Organization and United Nations Environment Programme); WHO, CLIMATE CHANGE AND HUMAN HEALTH: RISK AND RESPONSES, SUMMARY, available at http://www.who.int/globalchange/publications/cchsummary/en/ (last visited July 8, 2004).

52 Uncertainty with respect to global climate change relates to the extent of its consequences, rather than whether the phenomenon will materialize. See R.T., Watson & A.J., McMichael, Global Climate ChangeThe Latest Assessment: Does Global Warming Warrant a Health Warning?, 2 GLOBAL CHANGE & HUM. HEALTH 64 (2001)Google Scholar, available at http://www.kluweronline.com/issn/1389-5702.

53 WHO, Global Environmental Change, Stratospheric Ozone Depletion, UV Radiation and Health, available at http://www.who.int/globalchange/ozone_uv/en/ (last visited July 8, 2004).

54 OUR COMMON FUTURE, supra note 48, at 33.

55 EPA, OZONE SCIENCE: THE FACTS BEHIND THE PHASEOUT, at http://www.epa.gov/ozone/science/sc_fact.html (last updated June 21, 2004).

56 The precautionary principle calls upon states to take cost-effective measures to protect the environment, even in the face of scientific uncertainty if there is evidence of serious environmental harm. See Rio Declaration, supra note 32, at 879.

57 Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, 26 I.L.M. 1529 (entered into force September 22, 1988) [hereinafter Vienna Convention].

58 Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1541 (entered into force January 1, 1989) [hereinafter Montreal Protocol].

59 Vienna Convention, supra note 57.

60 Id.

61 Id. at 1530.

62 Montreal Protocol, supra note 58, amended June 29, 1990, 30 I.L.M. 541, amended Nov. 23-25, 1992, 32 I.L.M. 874, amended Sept. 15-17, 1997, at http://www.unep.org/ozone/Treaties_and_Ratification/2Bi_3%20Montreal%20amendment.asp (last visited July 8, 2004), amended Dec. 3, 1999, at http://www.unep.org/ozone/Treaties_and_Ratification/2Bi_4%20Beijing%20amendment.asp (last visited July 8, 2004).

63 Montreal Protocol, supra note 58.

64 See, e.g., Marian, Nash Leich, U.S. Practice, 82 AM. J. INTL L. 103, 124 (1988)Google Scholar; Steven, J. Shimberg, A Review of Major Provisions: Stratospheric Ozone and Climate Protection: Domestic Legislation and the International Process, 21 ENVTL. L. 2175, 2196 (1991)Google Scholar.

65 Report of the Secretary-General, Health and Sustainable Development, prepared for the World Summit on Sustainable Development, E/CN.17/2001/PC/6, at 12-13, available at http://www.who.int/mediacentre/events/HSD_Plaq_02.2_Gb_def1.pdf (last visited July 8, 2004).

66 Id. at 11.

67 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, 37 I.L.M. 22 (entered into force Mar. 21, 2004) [hereinafter Kyoto Protocol].

68 See, e.g., Laura, Thoms, A Comparative Analysis of International Regimes on Ozone and Climate Change with Implications for Regime Design, 41 COLUM. J. TRANSNATL L. 795, 816 (2003)Google Scholar.

69 See Congressman Mark Udall, Scaling New Heights or Retreating from Progress: How Will the Environment Fare Under the Administration of President George W. Bush?, 2000 COLO. J. INTL ENVTL. L. & POLY 1.

70 See John B. Fowles, Compounding the Countermajoritarian Difficulty Through Plaintiff's Diplomacy: Can the International Criminal Court Provide a Solution?, 2003 BYU L. REV. 1129, 1131.

71 Rio Declaration, supra note 32 at 877.

72 United Nations Framework Convention on Climate Change, 1771 U.N.T.S. 107, available at http://unfccc.int/resource/conv [hereinafter UNFCCC].

73 Id. at pmbl.

74 Id.

75 Id. at art. 1.1.

76 Id. at art. 3.

77 The preamble also refers to the need to protect the climate system for present and future generations. Id.

78 This principle was one of the most contentious issues at the Rio Conference, particularly in relation to global warming. Although it is reflected in the Vienna Convention on the Ozone Layer, it is not mentioned as a principle. It is also one of the reasons why the United States does not want to ratify the Kyoto Protocol. There was a concerted effort at the World Summit on Sustainable Development in 2002 to remove this principle. While its legal status as a principle is subject to debate, the fact that it is embodied in a legally binding document obviously carries some weight. See Nancy Myers, Science and Environmental Health Network, The Precautionary Principle Puts Values First, 22 BULLETIN OF SCI. TECH. & SOCY 210 (2002), available at http://www.sehn.org/pdf/putvaluesfirst.pdf.

79 It must be noted that although this is listed under principles in Article 3 of the Convention, it does not refer to the precautionary principle, but rather, precautionary measures. Some have queried whether this dilutes the nature of the principle. See, e.g., GREENPEACE INTERNATIONAL, WHO TO BLAME TEN YEARS AFTER RIO?, at http://archive.greenpeace.org/politics/EarthSummit/docs/blame.pdf (Mar. 2002).

80 It is significant to note that the Convention refers to the right of the parties to sustainable development. It is the first time that a binding instrument refers to the right to sustainable development. UNFCCC, supra note 72, at art. 3.4.

81 The principle of cooperation is considered a general principle of international law and applicable to the environment field also. See, e.g., NORTH AMERICAN COMMISSION FOR ENVIRONMENTAL COOPERATION, THREE COUNTRIES WORKING TOGETHER TO PROTECT OUR SHARED ENVIRONMENT, at http://www.cec.org (last visited July 8, 2004).

82 Philippe Sands believes that the word framework in the title is a misnomer because it established: (a) commitments to stabilise greenhouse gas concentrations in the atmosphere ; (b) a financial mechanism ; (c) two subsidiary bodies ; (d) a number of important guiding Principles; and potentially innovative implementation and dispute settlement mechanisms. PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 272 (2d ed. 2003).

83 Kyoto Protocol, supra note 67.

84 CONSAD RESEARCH CORPORATION, THE KYOTO PROTOCOL: A FLAWED TREATY IMPACT AMERICA, at http://www.consad.com/reports/kyoto.htm (May 1998).

85 Sean, D. Murphy, Contemporary Practice of the United States Relating to International Law, 95 AM. J. INTL L. 626, 649 (2001)Google Scholar.

86 See generally EUROPA, CONFERENCES OF THE PARTIES TO THE CONVENTION ON CLIMATE CHANGE, at http://europa.eu.int/comm/environment/climat/cop.htm (last updated Jan. 23, 2004).

87 Id.

88 Kyoto Protocol, supra note 67.

89 UNFCCC, supra note 72.

90 30 I.L.M. 800 (entered into force February 25, 1991).

91 Id. at 803, art. 1(vii).

92 Id. at 812.

93 Id. at 804, art. 2(3).

94 Convention on Long-range Transboundary Air Pollution, Nov. 13, 1979, 1302 U.N.T.S. 217.

95 Id. at 218, art. 1(a).

96 The later environmental treaties do not refer to man, but rather to humankind or human beings. This also accords with human rights terminology. See, e.g., Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, Principle 1, U.N. A/CONF.151/26 (1992).

97 Convention on Long-range Transboundary Air Pollution, supra note 94.

98 Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Further Reduction of Sulphur Emissions, June 14, 1994, 2030 U.N.T.S. 122.

99 Id.

100 Generally referred to as the MARPOL Convention of 1973, opened for signature Jan. 15, 1974, 12 I.L.M. 1319.

101 Id. at 1320.

102 United Nations Environment Programme Conference of Plenipotentiaries on the Global Convention on the Control of Transboundary Movements of Hazardous Wastes: Final Act and Text of Basel Convention, Mar. 22, 1989, 28 I.L.M. 649.

103 Id. at 657.

104 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Sept. 11, 1998, 38 I.L.M. 1.

105 Id.

106 The Stockholm Convention on Persistent Organic Pollutants, 2001 (U.N. Doc. UNEP/POPS/CNF/4, available at http://www.pops.int) is similar. The preamble refers to the health concerns, especially in developing countries, resulting from local exposure to persistent organic pollutants, in particular the impact on women and, through them, on future generations. It further states that the parties are determined to protect human health and the environment from the harmful impact of persistent organic pollutants.

107 June 5, 1992, 1760 U.N.T.S. 79.

108 Id. at 150.

109 Id. at 143.

110 Jan. 29, 2000, 39 I.L.M. 1027.

111 Id.

112 Shelton, supra note 19, at 10.

113 Protocol on Water and Health, MP.WAT/2000/1, EUR/ICP/EHCO 020205/8Fin, October 18, 1999, available at http://www.unece.org/env/water/text/text_protocol.htm (last visited June 25, 2004).

114 Mar. 17, 1992, 31 I.L.M. 1312.

115 See Protocol on Water and Health, supra note 113, at pmbl.

116 Id. at art. 1.

117 See Sumudu, Atapattu, The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment under International Law, 16 TUL. ENVTL. L.J. 65 (2002)Google Scholar.

118 See, e.g., Marc Pallermaerts, International Environmental Law From Stockholm to Rio: Back to the Future?, in GREENING INTERNATIONAL LAW 1 (Philippe Sands ed., 1994).

119 See Lauren, A. Mowery, Earth Rights, Human Rights: Can International Environmental Human Rights Affect Corporate Accountability, 13 FORDHAM ENVTL. L. J. 343, 347 (2002)Google Scholar (Many environmentalists are concerned with the anthropocentricity of an environmental human right, because the environment becomes subjugated to the needs of humanity.).

120 Cf. Satvinder Juss, supra note 3 (claiming that human rights can play an essential role in the search for solutions to problems caused by environmental change.).

121 Aarhus Convention, supra note 16. Despite being geographically limited in its scope, the Convention breaks new ground in environmental law as it embodies environmental rights for the first time. See Atapattu, supra note 117, at 89.

122 Freedom of information (which forms part of the freedom of expression) and participation are embodied in Articles 19 and 25 of the ICCPR respectively, while Article 14 embodies equality before courts and tribunals. See ICCPR, supra note 14.

123 Protected under Article 6 of the ICCPR. See Case 7615, Inter-Am. C.H.R., OEA/ser.L/V/II.66, doc. 10 rev.1(1985), reprinted in 1985 Inter-Am. Y.B. on H.R. 264, 279 (involving the Yanomami Indians of Brazil who claimed that their right to life protected under the American Declaration of the Rights and Duties of Man had been violated as a result of a construction of a highway through their territory); see also, X. v. Austria, 18 Eur. Commn H.R. Dec. & Rep. 154 (1980), where the same argument was not upheld by the European Commission of Human Rights. Richard, Desgagne, Integrating Environmental Values into the European Convention on Human Rights, 89 AM. J. INTL L. 263, 271 (1995)Google Scholar

124 Protected under Article 12 of the ICESCR. See Arrondelle v. United Kingdom, 5 Eur. H.R. Rep. 118 (1983).

125 Protected under Article 17 of the ICCPR. See Powell & Rayner v. U.K., 172 Eur. Ct. H.R. (ser. A) (1990); Lopez Ostra v. Spain, 20 Eur. H.R. Rep. 277 (1995).

126 Protected under Article 11 of the ICESCR. See S. v. France, 172 Eur. Ct. H.R. (Ser. A) (1990).

127 See, e.g., Melissa, A Verhaag, It Is Not Too Late: The Need for a Comprehensive International Treaty to Protect the Arctic Environment, 15 GEO. INTL ENVTL. L. REV. 555, 560 (2003)Google Scholar (Perhaps the most significant and harmful pollutants affecting animals and humans that live in the Arctic, as well as causing harm to the Arctic environment, are persistent organic pollutants (POPs). POPs are defined as chemical substances that persist in the environment, bioaccumulate through the food web, and pose a risk of causing adverse effects to human health and the environment.).

128 Several formulations have been proposed in literature, including, clean, adequate, healthy and safe. See Michael, Burger, Bi-Polar and Polycentric Approaches to Human Rights and the Environment, 28 COLUM. J. ENVTL. L. 371, 376 (2003)Google Scholar ([N]ational regulations typically provide for quantitative measurements of environmental quality. Therefore, the shift to the international sphere requires a concomitant shift to qualitative definitions. And herein one encounters various semantic choices: clean, healthy, decent, viable, sustainable. What any of these terms actually means remains and open question.).

129 Rio Declaration, supra note 32.

130 Id. at 876.

131 See Dinah, Shelton, What Happened in Rio to Human Rights?, 3 Y.B. INTL ENVTL. L. 75 (1992)Google Scholar.

132 Similar rights are embodied in the 1982 World Charter for Nature, a unique document in the field of environmental law which lays down rights of nature. See 22 ILM 455 (1983); Rio Declaration, supra note 32, at Principle 17.

133 Referring to the Stockholm Declaration and the United Nations General Assembly Resolution 45/94 which said that individuals are entitled to live in an environment adequate for their health and well-being.

134 See Dinah Shelton, Environmental Rights in Multilateral Treaties Adopted Between 1991 and 2001, JOINT UNEP-OHCHR EXPERT SEMINAR ON HUMAN RIGHTS AND THE ENVIRONMENT, Background Paper No. 1, (2002).

135 Now called the Sub-Commission on Minorities.

136 U.N. Doc. E/CN.4/Sub.2/1991/8(1991) (Preliminary Report); U.N. Doc. E/CN.4/Sub.2/1992/7 and Add.1 (1992) (First Progress Report); U.N. Doc. E/CN.4/Sub.2/1993/7 (1993) (Second Progress Report); U.N. Doc. E/CN.4/Sub.2/1994/9 (1994) (Final Report).

137 Review of Further Developments in Fields with which the Sub-Commission Has Been or May be Concerned, Human Rights and the Environment, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, 46th Sess., U.N. Doc. E/CN.4/Sub.2/1994/9 (1994) available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/9486c22801050dde802566330050f6db?Opendocument.

138 Note prepared by the Special Rapporteur, UN Doc. E/CN.4/Sub.2/1990/12, 4 (1990).

139 Final Report, supra note 136, at 22.

140 While several recommendations have been made to include a right to environment in the European Convention on Human Rights, to date no such development has taken place. See Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950). Asia, on the other hand, does not have a regional human rights mechanism in place. See e.g. Pamela, Jeffries, Human Rights, Foreign Policy, and Religious Belief: An Asia/Pacific Perspective, 2000 BYU L. REV. 885, 888 (2000)Google Scholar.

141 Banjul Charter on Human and People's Rights, June 19, 1981, 21 I.L.M. 58.

142 Also called the Protocol of San Salvador, Nov. 14, 1988, 28 I.L.M. 156.

143 Aarhus Convention, supra note 16.

144 Banjul Charter on Human and People's Rights, supra note 141, at 63.

145 ICESCR, supra note 8.

146 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 17, 1988, OEA/Ser.A/44, art. 11, available at http://www.oas.org/juridico/english/Treaties/a-52.html (last visited July 8, 2004).

147 Id. at art. 10.

148 Id.

149 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, 38 I.L.M. 517.

150 Id. at pmbl.

151 Aarhus Convention, supra note 16, at 518.

152 See Jennifer A. Downs, A Healthy and Ecologically Balanced Environment: An Argument for a Third Generation Right, 3 DUKE J. COMP. & INTL L. 351 (1993); Stephan Marks, Emerging Human Rights: A New Generation for the 1980s?, 33 RUTGERS L. REV. 435 (1980-81).

153 The reference to generations is common parlance in international human rights law. While civil and political rights belong to the first generation, economic, social, and cultural rights belong to the second generation. Some writers argue that third generation rightscollective rights are now emerging which cannot be accommodated within the first two generations of rights. Karel Vasak is considered the architect of third generation rights. Cf. Phillip Alston, A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?, 29 NETH. INTL L. REV. 307 (1985); and Gunther Handl, Human Rights and Protection of the Environment: A Mildly Revisionist View, in HUMAN RIGHTS, SUSTAINABLE DEVELOPMENT AND THE ENVIRONMENT (Antonio Trindade ed., 1992).

154 Alan Boyle, The Role of International Human Rights Law in the Protection of the Environment, in HUMAN RIGHTS APPROACHES TO ENVIRONMENTAL PROTECTION 53 (Alan Boyle & Michael Anderson eds., 1996).

155 Id.

156 See UNFCCC, supra note 72, at art. 3.

157 Id. at 855, (stating that [t]he Parties have a right to, and should, promote sustainable development. This is the first time that an environmental treaty refers to the right to sustainable development.).

158 See DAVIS UNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 237-47 (Foundation Press 1998); Philippe Sands, International Law in the Field of Sustainable Development, 65 BRIT. Y.B. INTL L. 303 (1994).

159 The often quoted definition of sustainable development is that proposed by the World Commission on Environment and Development in 1987: [D]evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs. OUR COMMON FUTURE, supra note 48, at 43. A detailed discussion of sustainable development cannot be undertaken at this juncture; however, there is a wealth of material on the topic. See generally, SUSTAINABLE DEVELOPMENT: PAST ACHIEVEMENTS AND FUTURE CHALLENGES (Alan Boyle & David Freestone eds., 1999); SUSTAINABLE DEVELOPMENT AND INTERNATIONAL LAW (Winfried Lang ed., 1995); Michael McCloskey, The Emperor Has No Clothes: The Conundrum of Sustainable Development, 9 DUKE ENVTL. L. & POLY F. 153 (1999); PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT (2d ed. 2002).

160 See Alan Boyle, supra note 154, at 51.

161 The Indian Supreme Court has been a pioneer in this field. See Subash Kumar v. State of Bihar, AIR 1991 SC 420, where the Supreme Court stated that [t]he right to life is a fundamental right under article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. See also the decision of the Supreme Court of the Philippines in Minors Oposa v. Secretary of the Department of Environment and national Resources, July 30, 1993, 33 I.L.M. 173 (July 30, 1993). Here, the Court pointed out that the right to a balanced and healthful ecology need not even be written in the Constitution for [they] are assumed to exist from the inception of humankind. Id at 187.

162 See the survey of national legislation and national cases in the Second Progress Report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur on Human Rights and the Environment, E/CN.4/Sub.2/1993/7, 26 July 1993.

163 Good examples are the precautionary principle, which originated from the German law, and the environmental assessment process which originated from U.S. law.

164 Or global partnership as the Rio Declaration refers to it. See Rio Declaration, supra note 32, at 877.