LAWS20009 Lecture 9: HUMAN RIGHTS AND THE ENVIRONMENT
LECTURE 9: HUMAN RIGHTS AND THE ENVIRONMENT
• Importance of understanding property law – intimately linked with human
rights
• Distinguishing human rights from rights for nature or non-human species
o Ecuadorian Constitution v African Charter on Human and People’s
Rights (‘all people shall have the right to a general satisfactory
environment satisfactory to their development’)
HUMAN RIGHT TO A CLEAN ENVIRONMENT
• International law: Stockholm and Rio Declaration
• Draft principles on Human Rights and the Environment (1994)
o Human rights, an ecologically sound environment, sustainable
development and peace are interdependent and indivisible
o All persons have the right to a secure, healthy and ecologically
sound environment
o All persons shall be free from any form of discrimination regarding
actions and decisions that affect the environment
o All persons have the right to an environment adequate to meet equitable the needs of present generations and
that does not impair the rights of future generations to meet equitably their needs
• Domestic Rights to a clean environment: more recognised than Constitutional rights
• Constitutional Rights to a clean environment: most commonly seen in developing countries, all laws must ensure a clean
environment
South Africa
• South African Constitution, Article 24
o Everyone has the right to:
▪ An environment that is not harmful to their health or well-being (clear right vested in humans, can be
actioned by individuals against governments, NGO’s, individuals or corporations)
▪ To have the environment protected for the benefit of present and future generations, through
reasonable legislative and other measures that: (obligations on the state – represents foundation right
– all laws must be interpreted consistent with this right, and transformative right – will trigger change)
• Prevent pollution and ecological degradation
• Promote conservation
• Secure ecologically sustainable development and use of natural resources while promoting
justifiable economic and social development
Australia
• Overwhelming majority agree for this right
• National Human Rights Consultation Report – 2009
o 31 recommendations, none include the addition of an environmental right
o 72% of all respondents believed in an environmental right – more than agreed on discrimination – a central
concern of Australians
o Env harm is a barrier to other rights
o Scope of the right makes it unsuitable for inclusion – too many changes would have to occur, burden on govt
• ACT: proposed right
Lecture Overview
• What are human rights and how
do they relate to the environment
Human rights and environmental
protection:
• Rights to a clean environment
• Other potentially relevant human
rights: privacy, property, culture
life, integrity and security, of
indigenous people to collective
property
• Human rights and contemporary
climate change cases
BP Southern Africa Case (2004)
• Refusal by govt to build petrol station – govt said
they were upholding rights to clean environment
• Court accepted that right to clean environment
• Environmental right protects human’s socio-
economic interests, as well as health interests in the
env
• Department is obliged to develop an integrated
environmental management program, which takes
cognisance of a wide spectrum of considerations,
including international conventions and approaches
because of the broad and extensive definition of
environment, includes consideration of socio-
economic conditions
Stilfontein Gold Mining case (2006)
• Suite of cases associated with mines when they
discharge effluent
• In S. Africa, miners cannot extract profit at the
expense of human life – can’t walk away from
environmental obligations where they have caused
damage
• Mining companies are free to exploit the mineral
resources of the country for a profit over the life of
mine, thereafter they may simply walk away from
their environmental obligations. This simply cannot
be permitted in a constitutional democracy which
recognises the right of all its citizens to be protected
from the effects of pollution and degradation
