UNITED

NATIONS E
Economic and Social Distr.
GENERAL
Council
E/CN.4/Sub.2/1994/9
6 July 1994

ENGLISH
Original: ENGLISH/FRENCH

COMMISSION ON HUMAN RIGHTS

Sub-Commission on Prevention
of Discrimination and
Protection of Minorities
Forty-sixth session
Item 4 of the provisional agenda

REVIEW OF FURTHER DEVELOPMENTS IN FIELDS WITH

WHICH THE SUB-COMMISSION HAS BEEN CONCERNED

HUMAN RIGHTS AND THE ENVIRONMENT

Final report prepared by Mrs. Fatma Zohra Ksentini, Special Rapporteur

CONTENTS
Paragraphs Page
Introduction . . . . . . . . . . . . . . . . . . . . . . . 1 - 20 3

A. Origin of the study . . . . . . . . . . . . . . . 8 - 11 4

B. Terms of reference of the Special Rapporteur . . 12 - 19 5
C. Plan of the study . . . . . . . . . . . . . . . . 20 6

Chapter

I. FROM ENVIRONMENTAL LAW TO THE RIGHT TO A SATISFACTORY

ENVIRONMENT: LEGAL FOUNDATIONS . . . . . . . . . . . 21 - 46 8

A. General provisions . . . . . . . . . . . . . . . 21 - 33 8
B. International human rights instruments . . . . . 34 - 46 11

II. RIGHT TO DEVELOPMENT, PARTICIPATORY DEMOCRACY

AND THE ENVIRONMENT . . . . . . . . . . . . . . . . . 47 - 73 15

A. Some aspects of the problem . . . . . . . . . . . 47 - 62 15

B. Right to development; sustainable and
environmentally sound development . . . . . . . . 63 - 66 18
C. Development, participation and the environment . 67 - 73 20

GE.94-13205 (E)
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CONTENTS (continued)

Chapter Paragraphs Page

III. OTHER ASPECTS OF THE RELATIONSHIP BETWEEN HUMAN RIGHTS

AND THE ENVIRONMENT . . . . . . . . . . . . . . . . . 74 - 116 22

A. Indigenous peoples and the environment . . . . . 74 - 94 22

B. Protection of the environment in periods of
armed conflict . . . . . . . . . . . . . . . . . 95 - 110 27
C. The environment, and international peace and
security . . . . . . . . . . . . . . . . . . . . 111 - 116 31

IV. ENVIRONMENTAL DEGRADATION AND ITS IMPACT ON

VULNERABLE GROUPS . . . . . . . . . . . . . . . . . . 117 - 160 33

A. Overview . . . . . . . . . . . . . . . . . . . . 117 - 136 33

B. Vulnerable groups . . . . . . . . . . . . . . . . 137 - 160 36

V. ANALYSIS OF THE EFFECTS OF THE ENVIRONMENT ON THE

ENJOYMENT OF FUNDAMENTAL RIGHTS . . . . . . . . . . . 161 - 234 42

A. Right to self-determination and permanent

sovereignty over natural resources . . . . . . . 163 - 171 42
B. Right to life . . . . . . . . . . . . . . . . . . 172 - 175 44
C. Right to health . . . . . . . . . . . . . . . . . 176 - 187 46
D. Right to food . . . . . . . . . . . . . . . . . . 188 - 191 48
E. Right to safe and healthy working conditions . . 192 - 194 48
F. Right to housing . . . . . . . . . . . . . . . . 195 - 202 49
G. Right to information . . . . . . . . . . . . . . 203 - 216 50
H. Popular participation . . . . . . . . . . . . . . 217 - 223 53
I. Freedom of association . . . . . . . . . . . . . 224 - 225 55
J. Cultural rights . . . . . . . . . . . . . . . . . 226 - 234 55

VI. CONCLUSIONS AND RECOMMENDATIONS . . . . . . . . . . . 235 - 261 58

A. Conclusions . . . . . . . . . . . . . . . . . . . 235 - 257 58

B. Recommendations . . . . . . . . . . . . . . . . . 258 - 261 62

ANNEXES:

I. Draft principles on human rights and the environment . . . . . . 74

II. Meetings with, and contributions of, experts and

non-governmental organizations . . . . . . . . . . . . . . . . . 78

III. Developments in national legislation and practices . . . . . . . 81

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INTRODUCTION

1. The environment, development, democracy, human rights: these are the key
issues which characterize the close of this century and pose a continuing
challenge to the establishment of an order in which, in conformity with the
Universal Declaration of Human Rights, the rights set out therein can be fully
realized. Revolt against oppression, the quest for justice, the search for
progress and the pursuit of development are fundamental concerns of mankind.
They were apparent in the acts of the Founder and King of Babylon, Hammurabi,
who, 16 centuries before Jesus Christ, sought to bring in the reign of justice
to protect the weak from being wronged. They also emerge from the thoughts of
the Confucian Meng-tzu who, 300 years before Jesus Christ, asserted: "The
individual is infinitely important; what matters least is the person of the
sovereign". They also mark Antigone’s act of revolt when she invoked her
right to disobedience in order to transgress the orders of the King, and
Spartacus’ courage when he led the slaves to break their chains.

2. When, on 10 December 1948, the international community solemnly

proclaimed the Universal Declaration of Human Rights, it acknowledged the
dynamics of the triptych of oppression-revolt-repression, and underscored in
two essential preambular paragraphs that "disregard and contempt for human
rights have resulted in barbarous acts which have outraged the conscience of
mankind, and the advent of a world in which human beings shall enjoy freedom
of speech and belief and freedom from fear and want has been proclaimed as the
highest aspiration of the common people" and that "it is essential, if man is
not to be compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by the rule of
law".

3. The Universal Declaration also underscores the full importance of the

legal expression of human rights and of establishing a legal framework that
provides effective remedies. The protection of human rights by the rule of
law indeed remains one of the means of democratic expression of claims, within
a structured framework that guarantees legal action while fostering dialogue.

4. For the particular purposes of this study of human rights and the
environment, it is equally important to establish the legal framework for
pursuing what have become the essential demands of this century, in order to
take up the legitimate concerns of our generation, to preserve the interests
of future generations and mutually to agree upon the components of a right to
a healthy and flourishing environment.

5. The Special Rapporteur remains convinced that providing the various

agents and beneficiaries of this evolving right with the legal framework and
means of expression, communication, participation and action will reinforce
the channels for dialogue, discussion and cooperation nationally, regionally
and internationally, thereby making it possible to define the mutually agreed
component of this right as well as its harmonious application, in conformity
with the universally recognized fundamental principles of human rights. Human
rights would thereby gain a new dimension. In addition, they should make it
possible to go beyond reductionist concepts of "mankind first" or "ecology
first" and achieve a coalescence of the common objectives of development and
environmental protection. This would signify a return to the principal
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objective that inspired the Universal Declaration of Human Rights, whose

article 28 states: "Everyone is entitled to a social and international order
in which the rights and freedoms set forth in this Declaration can be fully
realized".

6. For many years environmental problems were almost exclusively considered

from the standpoint of the pollution in one part of the world, i.e. the
industrialized countries. 1/ Acknowledgement of the link between the
environment and human rights was fostered by an awareness of the global,
complex, serious and multidimensional nature of environmental problems.
Moreover, attention is being focused more and more on environmental
deterioration wherever it occurs, on understanding its causes and on examining
its repercussions and the risks involved.

7. This new attitude has the virtue of going beyond the limited framework
and narrow vision that previously circumscribed environmental problems, and it
tackles the issue from a universal angle, involving a global economic, social
and cultural approach to which it adds the human dimension (the human right to
a healthy and balanced environment and to "sustainable development"). 2/

A. Origin of the study

8. In decision 1989/108 dated 31 August 1989, adopted without a vote, the

Sub-Commission on Prevention of Discrimination and Protection of Minorities
asked Mrs. Fatma Zohra Ksentini to prepare a concise note setting forth
methods by which a study could be made of the problem of the environment and
its relation to human rights. The above decision also indicates that the
information on human rights and the environment provided to the Sub-Commission
at its forty-first session by Friends of the Earth, the Sierra Club Legal
Defense Fund, Inc. and the Association of Humanitarian Lawyers, and by certain
members, together with the Environmental Perspective to the Year 2000 and
Beyond (General Assembly resolution 42/186, dated 11 December 1987) justified
the Sub-Commission’s consideration of this issue.

9. On 6 March 1990 the Commission on Human Rights adopted

resolution 1990/41, entitled "Human rights and the environment", in which it
underscored the link between the preservation of the environment and the
promotion of human rights and welcomed the decision of the Sub-Commission to
have a note prepared for its forty-second session on methods by which a study
on the problems of the environment and its relation to human rights could be
made.

10. Although this is the first time the Sub-Commission has considered
environmental problems as a whole and in relation to human rights, it has
already dealt with some aspects of the problem, such as the movement and
dumping of toxic and dangerous products and wastes (resolution 1988/26, dated
1 September 1988). 3/

11. Debates within the Sub-Commission and the Commission, together with
written observations submitted to the Special Rapporteur pursuant to
resolution 1989/108, have focused on the following points:
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(a) A universal awareness of the scale, seriousness and complexity of

environmental problems;

(b) The need for appropriate national, regional and international

measures to address such problems;

(c) The close link between the environment and human rights. Some
human rights violations are allegedly the causes of or factors in
environmental degradation; moreover, deterioration of the environment affects
the enjoyment of human rights (life, health, work, information, participation,
self-determination, the right to development, to peace and security, and so
on);

(d) Specific regional and other development projects were advanced as

illustrations of environmental degradation and infringement of human rights;

(e) The Sub-Commission and the Commission on Human Rights should focus
greater attention on the environmental problems that affect human rights.

B. Terms of reference of the Special Rapporteur

12. In response to the requests of the Sub-Commission and the Commission,

Mrs. Ksentini submitted a note to the Sub-Commission at its forty-second
session containing a number of proposals for a study of the environment and
its relation to human rights (A/CN.4/Sub.2/1990/12). After examining the
note, the Sub-Commission adopted resolution 1990/7 on 30 August 1990
requesting the Special Rapporteur to submit a preliminary report to it at its
forty-third session. That request was approved by the Commission on Human
Rights, in resolution 1991/44 dated 5 March 1991, and by the Economic and
Social Council, in decision 1991/244 dated 31 May 1991. The Sub-Commission,
after considering the preliminary report (E/CN.4/Sub.2/1991/8), adopted
resolution 1991/24 dated 29 August 1991, whereby it requested the Special
Rapporteur to submit a progress report. The Commission on Human Rights in
decision 1992/110 dated 28 February 1992, and the Economic and Social Council,
in decision 1992/252 dated 29 July 1992, endorsed this request.

13. The Sub-Commission examined the progress report (E/CN.4/Sub.2/1992/7 and

Add.1) containing an analysis of national and international provisions and the
decisions and comments of human rights bodies relating to human rights and the
environment as well as information on the results of the United Nations
Conference on Environment and Development held in Rio de Janeiro from 3 to
14 June 1992, in which the Special Rapporteur participated as an observer.

14. In resolution 1992/31 dated 27 August 1992, the Sub-Commission took note
with appreciation of the progress report and requested the Special Rapporteur
to continue her study and to submit to the Sub-Commission at its forty-fifth
session a second progress report containing additional information and an
analysis of decisions and views of international human rights organs and other
relevant organs, as well as information on and an analysis of national laws
and practice. The Commission on Human Rights endorsed this request in
decision 1993/144 dated 10 March 1993.
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15. The Special Rapporteur submitted her second progress report

(E/CN.4/Sub.2/1993/7) in which she reviews developments in regard to the
recognition and implementation of environmental rights as human rights on the
basis of the standards and practices developed at the national, regional and
universal levels. The report contains preliminary recommendations with a view
to the submission of conclusions and final recommendations to the
Sub-Commission at its forty-sixth session, in conformity with paragraph 3 of
resolution 1992/31 of the Sub-Commission.

16. On the basis of the terms of reference defined by the Economic and Social
Council, the Commission on Human Rights and the Sub-Commission on Prevention
of Discrimination and Protection of Minorities, the Special Rapporteur submits
her final report, together with recommendations and guidelines, in conformity
with Sub-Commission resolution 1993/32 dated 25 August 1993, and Commission
resolution 1994/65 dated 9 March 1994.

17. The Special Rapporteur wishes to express her gratitude to the members of
the Sub-Commission, States, United Nations organs, specialized agencies and
non-governmental organizations for the information with which they have
provided her and for the advice they have given. 4/ She wishes to mention,
in particular, the support given by the Sierra Club Legal Defense Fund, Inc.,
which has committed itself totally to this study and provided valuable
assistance in organizing international meetings, including a seminar in Geneva
from 15 to 19 May 1994, for the purpose of drawing up the guiding principles
annexed to this report. She also wishes to thank the participants whose
presence and expertise enabled her to improve the text submitted in the form
of "draft principles on human rights and the environment".

18. Throughout the period of her mandate, the Special Rapporteur has received
communications from Governments and non-governmental organizations drawing her
attention to specific situations. As a rule she has used them as a source for
identifying emerging trends, their use being restricted to the thematic
aspects of the study for which she was responsible.

19. As the study concerns human rights and the environment, the Special
Rapporteur’s main concern has been to bring out those aspects of the
environment that affect the enjoyment of human rights. As a result, the
sources drawn on in preparing this report have essentially been the relevant
international human rights instruments and the legislation and practices
developed in this area nationally, regionally and universally. In this
respect, the replies of Governments and intergovernmental and non-governmental
organizations have proved very useful, as have the Special Rapporteur’s
consultations with representatives of Governments, international agencies,
human rights bodies and non-governmental organizations, and with
representatives of indigenous peoples.

C. Plan of the study

20. With these considerations in mind, this study will comprise six chapters.
Chapter I is devoted to the legal foundations of the right to the environment.
Chapter II addresses the specific relationship between development and the
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environment. Chapter III concerns other aspects of the relationship between

human rights and the environment. Chapters IV and V analyse the impact of the
environment on vulnerable groups and on the enjoyment of fundamental rights.
In chapter VI, the Special Rapporteur sets out her conclusions and
recommendations. The annexes contain a draft declaration of principles on
human rights and the environment, an overview of consultations with
non-governmental organizations and a summary of national legislation and
practices compiled by the Special Rapporteur, essentially on the basis of
replies by Governments.
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CHAPTER I. FROM ENVIRONMENTAL LAW TO THE RIGHT TO A SATISFACTORY

ENVIRONMENT: LEGAL FOUNDATIONS

A. General provisions

21. Environmental protection is not solely a concern of this day and age;
this moral principle may be found in the precepts of Islam. Ibn Jarir
al-Tabari narrates the recommendations of the first Caliph, Abu Bakr
as-Siddiq, to the commander of the Arab armies, Ussama Ibn Zeid, who led an
expedition towards the "Sham" (Syria):

"Remember that you are always under the eye of God, behave like men, do
not run away, nor let the blood of women or children and old people stain
your victory. Do not destroy palm trees, do not burn houses or fields of
wheat, never cut down fruit trees and kill cattle only when you need to
eat it. When you sign a treaty, make sure you respect its clauses. As
you advance, you will meet men of faith living in monasteries and who
serve God through prayer; leave them alone, do not kill them and do not
destroy their monasteries".

22. International environmental regulations, which emerged from a worldwide

movement and a collective realization of the dangers threatening our planet
and the future of mankind, were initially sectoral and essentially envisaged
within the traditional framework of inter-State relations; they have finally
attained a global dimension, which has made possible the shift from
environmental law to the right to a healthy and decent environment.

23. The qualitative leap taken at the United Nations Conference on the Human
Environment (Stockholm, 5-16 June 1972) was preceded by sectoral regulations
dating back to the turn of the century with the drafting of the Paris
International Convention for the Protection of Birds useful to Agriculture.
The obligation to protect the environment during armed conflict is considered
to derive from the customary norms of international humanitarian law, and in
particular the St. Petersburg Declaration of 1868, which laid down
restrictions on methods of conducting hostilities by asserting that "the only
legitimate object which States should endeavour to accomplish during war is to
weaken the military force of the enemy".

24. International environmental law has developed to such an extent that

there are some 350 multilateral treaties, 1,000 bilateral treaties and a
multitude of instruments of intergovernmental organizations that have been
adopted in the form of declarations, programmes of action and resolutions.
International regulations initially focused on combating maritime, river and
air pollution and radioactivity. The latter is illustrated by the Treaty of
Moscow of 5 August 1963 Banning Nuclear Weapon Tests in the Atmosphere, in
Outer Space and Under Water, the Antarctic Treaty, signed in Washington on
1 December 1959, and the conventions and standards drawn up under the aegis of
International Atomic Energy Authority to safeguard against the risks of
irradiation and to ensure the physical protection of nuclear material.
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25. Regulation of global transboundary pollution has made it possible to

define a range of relevant principles which, according to Michel Prieur, "may
be considered as binding upon States". 5/ In this respect he cites the
following principles:

Before engaging in any activity that may have perceptible effects on the
environment of another State, the State under whose jurisdiction or
control the activity is to take place must assess its consequences;

It must inform the other State and transmit to it relevant details of the
project, provided they constitute information and data whose transmission
is not prohibited by national legislation or by relevant international
treaties;

In the case of activities liable to damage the environment of another

State, it must consult the State concerned if the latter so requests;

States must urgently inform the other States likely to be affected,

cooperate by providing mutual assistance in order to take the necessary
preventive measures and, where necessary, eliminate, mitigate or repair
the environmentally harmful consequences;

If the activities that take place within the jurisdiction or under the
control of a State damage, or are liable to damage, the environment of
another State, the latter’s residents who are affected or liable to be
affected by them must be able to have access to the administrative and
judicial procedures of the State in which the environmental damage
originates, on the same conditions as residents of that State. If
persons living abroad have already suffered damage, the same remedies
must be available to them as to residents. During these procedures,
non-residents must receive the same treatment as residents;

A State must not discriminate in its legislation or in the application of

that legislation on the basis of the location of the environmentally
harmful effects, by applying less stringent rules to activities whose
adverse environmental effects are felt beyond its frontiers.

26. As early as 1968, in resolution 2398 (XXII) dated 3 December 1968, the
General Assembly underscored the consequent effects of impairment of the
quality of the human environment on the condition of man and on his enjoyment
of basic human rights. In the same year, the Proclamation of Tehran drew
attention to the fact that, while recent scientific discoveries and
technological advances had opened vast prospects for economic, social and
cultural progress, such developments might nevertheless endanger the rights
and freedoms of individuals and would require continuing attention
(A/CONF.32/41, Proclamation, para. 18). The Stockholm Declaration of 1972
went on to recognize the relationship between the environment, man and his
basic rights, even the right to life itself.

27. The Declaration of the 1972 United Nations Conference on the Human
Environment 6/ contains, in addition to its 26 principles, an Action Plan
for the Human Environment, which made possible the establishment of the
United Nations Environment Programme, decided upon by the
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General Assembly. 7/ Although it is not mandatory, the Stockholm

Declaration none the less represents a set of values whose fundamental nature
is acknowledged by the international community. The Declaration proclaims
that "man is both creature and moulder of his environment" and that "Both
aspects of man’s environment, the natural and the man-made, are essential to
his well-being and to the enjoyment of basic human rights - even the right to
life itself". The question of environmental protection and improvement is
described as "a major issue which affects the well-being of peoples and
economic development throughout the world ... and the duty of all
Governments". The Declaration recognizes that "In the developing countries
most of the environmental problems are caused by underdevelopment. Millions
continue to live far below the minimum levels required for a decent human
existence, deprived of adequate food and clothing, shelter and education,
health and sanitation". The Declaration also recognizes that "To defend and
improve the human environment for present and future generations has become an
imperative goal for mankind - a goal to be pursued together with" the
achievement of the goals of peace and development.

28. Noteworthy among the essential principles defined by the Stockholm

Declaration is Principle 21, in accordance with which:

"States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their
own resources pursuant to their own environmental policies, and the
responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction".

29. The concept of the international responsibility of States implied by this

principle is also present in Principle 12 of the decision adopted on
19 May 1978 by the Governing Council of the United Nations Environment
Programme concerning shared natural resources. It is also evident, in the
provisions of the Charter of Economic Rights and Duties of States, 8/ which
asserts the sovereign right of States over their wealth and natural resources,
while affirming their responsibility to protect and preserve the environment
for present and future generations. The Charter also emphasizes the special
responsibility of occupying Powers over territories under their domination and
the obligation to preserve such territories from the plundering of their
natural resources.

30. Principle 1 of the Stockholm Declaration is also noteworthy. It states:

"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 a solemn responsibility to protect
and improve the environment for present and future generations. In this
respect, policies promoting or perpetuating apartheid, racial
segregation, discrimination, colonial and other forms of oppression and
foreign domination stand condemned and must be eliminated".

31. The relationships established by the Stockholm Declaration between the

environment, development, satisfactory living conditions, dignity, well-being
and individual rights, including the right to life, constitute recognition of
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the right to a healthy and decent environment, which is inextricably linked,

both individually and collectively, to universally recognized fundamental
human rights standards and principles, and which may be demanded as such by
their beneficiaries, i.e. individuals alone or in association with others,
communities, associations and other components of civil society, as well as
peoples.

32. Many documents have since been adopted by international, regional and
national bodies to strengthen the notion of the right to the environment
and underscore its interdependence with other human rights (the Declaration
on Social Progress and Development adopted in General Assembly
resolution 2542 (XXIV), dated 11 December 1969 the Charter of Economic Rights
and Duties of States; 9/ United Nations environmental programmes, including
resolution 42/186, dated 11 December 1987, relating to the Environmental
Perspective to the Year 2000 and Beyond; 10/ General Assembly
resolution 37/7, dated 28 October 1982, proclaiming the World Charter for
Nature).

33. The World Charter for Nature proclaims 24 principles of conservation "by
which all human conduct affecting nature is to be guided and judged", with as
its basic precept the idea that "nature shall be respected and its essential
processes shall not be impaired". Particular attention should be drawn to the
following principles, which are directly linked to the rights set out in the
international human rights instruments (right to health, to well-being, to an
education, to participate in decision-making).

Principle 11, which concerns in particular the control of activities

which might have an impact on nature, assessment of their consequences
and environmental impact studies of development projects, and the
rehabilitation of degraded areas for purposes in accord with their
natural potential and compatible with the well-being of affected
populations;

Principle 15, relating to broad dissemination of knowledge of nature,

particularly by "ecological education as an integral part of general
education";

Principle 23, which recognizes that "All persons, in accordance with

their national legislation, shall have the opportunity to participate,
individually or with others, in the formulation of decisions of direct
concern to their environment, and shall have access to means of redress
when their environment has suffered damage or degradation";

Principle 24, pursuant to which "each person has a duty to act in

accordance with the provisions" of the Charter and each person "acting
individually, in association with others or through participation in the
political process ... shall strive to ensure that the objectives and
requirements" of the Charter are met.

B. International human rights instruments

34. International human rights instruments contain few specific provisions

relating to the environment. The Universal Declaration of Human Rights
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recognizes that "Everyone is entitled to a social and international order in

which the rights and freedoms set forth in this Declaration can be fully
realized". It is generally accepted that the "order" to which the Declaration
refers also covers the environmental concerns of this day and age.

35. In article 24, the African Charter on Human and Peoples’ Rights states
that "All people shall have the right to a general satisfactory environment
favourable to their development".

36. The Additional Protocol to the American Convention on Human Rights

(San José, 1969), which relates to economic, social and cultural rights,
adopted at San Salvador in 1988, contains a clause concerning the right to an
environment. Article 11 provides that everyone shall have the right to live
in a healthy environment and to have access to basic public services; the
States parties are required to promote the protection, preservation and
improvement of the environment.

37. The Convention on the Rights of the Child, dated 20 November 1989,
explicitly refers to the need for the education of the child to be directed,
inter alia, to "the development of respect for the natural environment"
(art. 29, para. (e)). Moreover, as with most other instruments, many of its
provisions are intended to be implemented from an ecological standpoint,
bearing in mind the relationship between the environment, development and
human rights (see para. 31 above).

38. These links are even more apparent where children are concerned in view
of their vulnerability. From this standpoint, the following articles cannot
be dissociated from environmental considerations: article 6 (inherent right
of a child to life, survival and development); article 11 (protection against
transfer); articles 12, 13, 14 and 15 (freedom of opinion, expression, thought
and association); article 16 (protection of privacy and against arbitrary or
unlawful interference [cf. case law of the European Court of Human Rights
relating to infringements of privacy]); articles 17 and 29 on the role of the
media, information and education; article 19 concerning protection against all
forms of violence, abandonment, neglect, ill-treatment (cf. in this connection
the phenomenon of urban growth and its effects on the well-being of children;
the problems of abandoned children and street children); article 22 on refugee
children (bearing in mind the concept of environmental refugees); article 24
on the right to health, including preventive health care; article 27 on the
right of every child to a standard of living adequate for his or her physical,
mental, spiritual, moral and social development; article 30 on the protection
of the rights of indigenous children or children belonging to minorities.

39. The same is true of the other international human rights instruments.
Without claiming to provide an exhaustive list, the way in which these
instruments should be implemented from an ecological standpoint may be
illustrated by the following examples.

(a) Universal Declaration of Human Rights

40. In addition to article 28, referred to above, the fifth preambular

paragraph (worth of the human person; social progress; better standard of
life); article 22 ("Everyone ... is entitled to realization ... of the
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economic, social and cultural rights indispensable for his dignity and the
free development of his personality"); article 24 (right to rest and leisure);
article 25 (right to an adequate standard of living).

(b) Proclamation of Tehran

41. Article 18 calls for vigilance concerning scientific discoveries and

technological advances which, although they have opened vast prospects for
economic, social and cultural progress, may nevertheless endanger the rights
and freedoms of individuals.

(c) International Covenant on Economic, Social and Cultural Rights

42. Article 1 (right of peoples to self-determination and to freely dispose

of their natural wealth and resources), article 7 (a decent living, safe and
healthy working conditions, rest and leisure), article 11 (right to an
adequate standard of living, and to be free from hunger; programmes to improve
methods of production, conservation and distribution of food; disseminating
knowledge of principles of nutrition; measures to achieve the most efficient
development and utilization of natural resources; equitable distribution of
world food supplies), article 12 (right to health; steps to be taken for the
healthy development of the child, improvement of all aspects of environmental
and industrial hygiene), article 15 (right to enjoy the benefits of scientific
progress and its applications).

(d) International Covenant on Civil and Political Rights

43. Article 1 (right of peoples to self-determination and to freely dispose

of their natural wealth and resources), article 6 (right to life), article 7
(prohibition of cruel, inhuman or degrading treatment or punishment, medical
or scientific experimentation without the consent of the person concerned),
article 17 (arbitrary or unlawful interference with privacy or the family) and
article 20 (prohibition of propaganda for war).

(e) International Convention on the Elimination of All Forms of Racial

Discrimination

44. The flagrant discrimination to which marginalized persons, vulnerable

groups, minorities and indigenous peoples are subjected vis-à-vis ecological
risks, raises sharply the issue of the effective implementation of the basic
principle of non-discrimination set out in the Convention, and that of the
practical implementation of all the provisions of the Convention on behalf of
disadvantaged individuals and groups (and more particularly article 5 on the
right to equal treatment before the tribunals, the right to security of
person, political and civil rights, economic, social and cultural rights, the
right of access to any place or service intended for use by the general
public, and article 6 on the right to effective protection and remedies).

(g) Convention on the Elimination of All Forms of Discrimination against

Women

45. The observations concerning the Convention referred to above are also
valid for this Convention. The Special Rapporteur further wishes to stress
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the basic role played by women in promoting economic, social, cultural and
political activities for sustainable development. She would therefore
emphasize the importance of the participatory role of women and the particular
value of the following provisions of the Convention on the Elimination of All
Forms of Discrimination against Women: article 5 on measures to be taken to
modify adverse social and cultural patterns of conduct of men and women;
article 7 on participation in political and public life, particularly the
right to vote and to stand for election, the right to participate in the
formulation of government policy and the implementation thereof, and the right
of participation and association; article 10 on the right of equal access to
education; article 11 on the right to work; article 12 on the right to health
and to appropriate services during and after pregnancy (with regard to this
latter point, environmental factors have a decisive effect on pregnant women,
embryos and young children); article 14 on the specific protection of rural
women and the efforts to be made to ensure their full participation in the
elaboration and implementation of development planning and in its benefits.

(e) International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families

46. The Convention rightly stresses "the situation of vulnerability in which

migrant workers and members of their families frequently find themselves", as
well as the need to ensure the international protection of their rights, which
should be implemented on the basis of the principle of non-discrimination.
The observations concerning the International Convention on the Elimination of
All Forms of Racial Discrimination are valid for this Convention also, but the
situation of vulnerability mentioned above must be kept in mind.
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CHAPTER II. RIGHT TO DEVELOPMENT, PARTICIPATORY

DEMOCRACY AND THE ENVIRONMENT

A. Some aspects of the problem

1. Indivisibility and interdependence of all human rights

47. The close relationship which exists between development - recognized as a

human right by several international texts, including the Declaration on the
Right to Development adopted by the General Assembly in its resolution 41/128
of 4 December 1986 - and the environment throws into relief the indivisible
and interdependent nature of all human rights. The idea of indivisibility has
already been emphasized by the Proclamation of Tehran of 13 May 1968, which
states in paragraph 13 that:

"Since human rights and fundamental freedoms are indivisible, the full
realization of civil and political rights without the enjoyment of
economic, social and cultural rights is impossible. The achievement of
lasting progress in the implementation of human rights is dependent upon
sound and effective national and international policies of economic and
social development".

48. General Assembly resolution 32/130 of 16 December 1977 and the subsequent
resolutions on "Alternative approaches and ways and means within the
United Nations system for improving the effective enjoyment of human rights
and fundamental freedoms" share the objective of "reconciling" different
generations of rights and rehabilitating economic, social and cultural rights.
This task of reconciliation was to be completed by the Declaration on the
Right to Development, which reaffirms in the preamble the principle already
embodied in the Universal Declaration of Human Rights of 1948 that:

"everyone is entitled to a social and international order in which the

rights and freedoms set forth in that Declaration can be fully realized".

In article 6 the Declaration on the Right to Development states unequivocally

that "All human rights and fundamental freedoms are indivisible and
interdependent" and that they should receive equal attention and urgent
consideration. Furthermore, the Declaration passes over neither the internal
nor the external factors impeding the realization of the right to development
(denial of civil, political, economic, social and cultural rights;
inappropriate development policies; unfavourable national and international
conditions; need to establish a new international economic order, to realize
the right of peoples to self-determination and enable them to exercise their
inalienable rights to full sovereignty over all their natural wealth and
resources; primary responsibility of States for the creation of national and
international conditions favourable to the realization of the right to
development, and so on).

49. Underlying the links between the right to development and the right to
the environment is the notion of the indivisibility and interdependence of all
human rights, whether civil or political, economic, social or cultural.
Moreover, it is impossible to separate the claim to the right to a healthy and
E/CN.4/Sub.2/1994/9
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balanced environment from the claim to the right to "sustainable" development,

which implies a concentration of efforts to combat poverty and
underdevelopment.

2. Poverty, underdevelopment, environmental degradation and enjoyment

of human rights

50. The Stockholm Declaration of 1972 affirms the inextricable link that
exists not only between the environment and human rights (right to freedom,
equality and dignity) but also between the environment and the right to
development (right to live under adequate conditions and in an environment of
a quality that permits a life of well-being and dignity).

51. For its part, the World Commission on Environment and Development,
established by the General Assembly in 1983, submitted a report in 1987 11/
which is a veritable plea for "sustainable development". The World Commission
analysed the crises besetting certain regions of the world and emphasized the
interaction of the economy and the environment, of national development
policies but also of the world economic system which takes from a poor
continent more than it gives to it. The Commission points out that "Debts
that they cannot pay force African nations relying on commodity sales to
overuse their fragile soils, thus turning good land to desert" (Introduction,
para. 19). "As a consequence of the ’debt crisis’ of Latin America, that
continent’s natural resources are now being used not for development but to
meet financial obligations to creditors abroad. This approach to the debt
problem is short-sighted from several standpoints: economic, political, and
environmental. It requires relatively poor countries simultaneously to accept
growing poverty while exporting growing amounts of scarce resources"
(Introduction, para. 20).

52. It is now widely recognized and acknowledged that poverty and

underdevelopment have an adverse effect that causes serious damage to the
environment and everywhere impedes realization of the right to development
and of other fundamental rights of the individual and of peoples. This
cause-and-effect relationship has been demonstrated in many studies. Thus the
South Commission, in its report "The Challenge to the South", 12/ affirms
that "The North, with its lifestyle conducive to waste, is mainly responsible
for the degradation of the environment. But poverty too makes a heavy
contribution to that degradation, and an effective strategy designed to
eliminate poverty ultimately serves to protect the environment". The South
Commission also analyses some aspects of national development strategies
which, when they are inappropriate, inadequate, unsuitable or socially
ill-oriented, carry great risks to the environment. By way of illustration,
the South Commission argues that the absence of social services in rural areas
speeds up the flight to the towns, to which the poor inhabitants emigrate in
search of a better level of living (education, health, plumbing, water and
well-being). This influx increases the pressure on urban social services and
worsens the overpopulation of the towns. The South Commission concludes that
the result is chaos and a sordid environment in the towns and desertion of the
countryside, and that the only way to break out of this vicious circle is by
improving education, health services, water supply and hygiene in rural areas.
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53. The data on the extent of poverty given in the preliminary report
(E/CN.4/Sub.2/1991/8) have not basically changed. As can be seen from the
World Bank’s "World Development Report 1992", 1 billion people lack an
adequate water supply, and about 1.7 billion people do not have adequate
sanitation facilities. 13/ UNDP’s "Human Development Report 1993" states
that in the developing countries some 800 million people still do not get
enough food; nearly 1 billion people - 35 per cent of the adult population -
are still illiterate; about one third of the world’s total population, or
1.3 billion people, are in absolute poverty; about 17 million people die every
year from infectious and parasitic diseases; approximately 95 per cent of the
10-12 million HIV-infected people are in the developing world; each day,
34,000 young children still die from malnutrition and disease; two thirds of
illiterates are women; internal conflicts affect some 60 countries, and about
35 million people are refugees or internally displaced; more than 850 million
people live in areas that are suffering from desertification. 14/

54. It is impossible to draw up an exhaustive or final balance sheet showing

the effect of environmental degradation on human rights the enjoyment of which
is already very much affected by underdevelopment and poverty (intolerable
infant mortality and undernourishment; illiteracy; lack of primary health care
and of social services; precarious housing; marginalization of the
underprivileged strata, or even racism and discrimination; non-participation
in the conduct of public affairs and in the country’s political, economic and
cultural decision-making, and so on). It is easy to see, however, that the
poor populations, the underprivileged strata, the minority groups and others
are the most affected in that they are more vulnerable to ecological risks and
repercussions (absence of legal and material means of protection; lack of
access to information; lack of suitable care, etc.). Furthermore poverty,
underdevelopment and marginalization reduce the prospects of economic, social
and cultural integration or reintegration of the victims. Those victims find
themselves in a vicious circle which includes a series of violations of human
rights: assaults on life and health; degradation of living conditions and
disintegration of the family unit; unemployment; emigration, exodus,
resettlement and even forced migrations which lead to further violations of
human rights (racism; discrimination; xenophobia; acculturation; violations of
dignity and arbitrary detention; refoulement; marginalization; precarious
living and housing conditions; prostitution; drugs; street children, etc.).

3. The external factors

55. The structure of international relations, and more particularly the

burden of debt and the impact of structural adjustment measures on the least
favoured categories, may constitute serious impediments to the achievement of
sustainable development.

56. The Brundtland report referred to above had already noted that:

"A mainspring of economic growth is new technology, and while this

technology offers the potential for slowing the dangerously rapid
consumption of finite resources, it also entails high risks, including
new forms of pollution and the introduction to the planet of new
variations of life forms that could change evolutionary pathways.
Meanwhile, the industries most heavily reliant on environmental resources
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and most heavily polluting are growing most rapidly in the developing
world, where there is both more urgency for growth and less capacity to
minimize damaging side effects" (Introduction, para. 14).

57. There is indeed a considerable risk that the developing countries,

ill-informed as they are or pursuing growth at all costs, will become the
outfall of the polluting industries which the North, alerted or impelled by
well-informed public opinion, wishes to remove from its own doorstep.

58. One author, analysing the combined effect of certain development policies
on the environment, noted that "today it is widely acknowledged that certain
international policies in the fields of investment, trade and aid may have
harmful effects on environmental conditions. The conditions laid down by IMF,
for example, may give rise to policies that generate practices that in their
turn cause the destruction of the environment. The imposition of extensive
agricultural production on marginal land, with the aim of increasing a given
country’s exports and improving its balance of payments, may have catastrophic
results." 15/

59. The Special Rapporteur of the Sub-Commission on the question of the

realization of economic, social and cultural rights notes for his part that
"structural adjustment package policies, which invariably include increasing
exports, often result in the overexploitation of natural resources, which
counteracts governmental attempts to solve environmental problems." 16/
The author goes on to make an exhaustive analysis of the effects of adjustment
on the exercise of economic, social and cultural rights. 17/

60. The developing countries’ debt now exceeds 1,500 billion United States
dollars. It is agreed by various sources that the debt crisis has brought
with it an unprecedented reverse flow of capital from the countries of the
third world to the developed countries. The countries of the South are
estimated to have paid some 500 billion dollars to the North between 1982 and
1990.

61. According to the European Network on Debt and Development (EURODAD), the
reimbursement of the debt should not take priority over the fundamental rights
of the populations of debtor countries to food, housing, clothes, work, health
services, and a healthy and viable environment. Each country should have
access to sufficient resources to permit sustainable and sustained development
and growth. 18/

62. The Global Consultation on the Right to Development as a Human Right for
its part noted that "Transfer of control of resources located in developing
countries to interests in developed countries, which intensified in the 1980s,
is another obstacle to development. Similarly, the growing burden of
indebtedness and structural adjustment falls heaviest on the poorest and
weakest sectors of society and has clear human rights implications." 19/

B. Right to development; sustainable and environmentally

sound development

63. Awareness of the major challenges emerging both as regards development

and with reference to the environment has made possible a consensus on the
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concept of "sustainable and environmentally sound development" which the

"Earth Summit", meeting in Rio in 1992, endeavoured to focus by defining an
ambitious programme of action, Agenda 21, clarified by a Declaration of
27 principles solemnly adopted on that occasion. The Special Rapporteur does
not intend to revert to the results of this Conference, which she outlined in
her earlier reports. 20/ However, she wishes to refer to the features
which seem to her to underlie the consensual approach to environmental
problems.

64. Reference should be made at this point to the content of the Declaration
on International Economic Cooperation adopted by the General Assembly in
May 1990, in particular the "Revitalization of economic growth and development
of the developing countries", which pays ample heed to the environment, thus
forging an inseparable link between development and the environment. The
Declaration recognizes that "Economic development must be environmentally
sound and sustainable," (para. 16) and notes that "The current threat to the
environment is the common concern of all. All countries should take effective
actions for the protection and enhancement of the environment in accordance
with their respective capacities and responsibilities and taking into account
the specific needs of developing countries. As the major sources of
pollution, the developed countries have the main responsibility for taking
appropriate measures urgently. The economic growth and development of
developing countries are essential in order to address problems of the
degradation and protection of the environment. New and additional financial
resources will have to be channelled to developing countries," (para. 29).

65. One should in this respect bear in mind the premises, defined by the
General Assembly in resolution 44/228 of 22 December 1989, premises which,
according to the Secretary-General, "were accepted when the nations of the
world called for the United Nations Conference on Environment and
Development". 21/ It will be noted in particular that this resolution
stresses that the major cause of the deterioration of the environment is the
"pattern of production and consumption, particularly in the industrialized
countries" and that "the responsibility for containing, reducing and
eliminating the global environmental damage must be borne by the countries
causing such damage". It recognizes that "new and additional financial
resources will have to be channelled to developing countries in order to
ensure their full participation in global efforts for environmental
protection". It was also decided to examine "environmental degradation and
the international economic environment... without introducing new forms of
conditionality". The examination of strategies for national and international
action conducive to "sustained and environmentally sound development" should
take place "bearing in mind that the incorporation of environmental concerns
and considerations in development planning and policies should not be used to
introduce new forms of conditionality in aid or in development financing and
should not serve as a pretext for creating unjustified barriers to trade".

66. The Agenda 21 programme is considered as giving expression to the now

accepted principle whereby responsibilities are shared but separate, in
accordance with the similarly accepted principle that the polluter pays -
reaffirmed in Principle 16 of the Declaration of Rio, on the basis of the idea
that "the polluter should, in principle, bear the cost of pollution", and
establishing a global partnership on a new and equitable basis. In this
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context, "environmental protection shall constitute an integral part of the

development process and cannot be considered in isolation from it"
(Principle 4), while the eradication of poverty is "an indispensable
requirement for sustainable development" (Principle 5). The "common but
differentiated responsibilities" of States imply acknowledgement of the
responsibility the developed countries bear "in the international pursuit of
sustainable development in view of the pressures their societies place on the
global environment and of the technologies and financial resources they
command" (Principle 7). In addition to the principle enshrined in the
Declaration, the United Nations Conference on Environment and Development
agreed on the need to support and complement the efforts of developing
countries and recognized that the implementation of the Agenda 21 programmes
would require providing developing countries with substantial new and
additional financial resources. The Conference also recognized the importance
of achieving during solutions to the debt problem.

C. Development, participation and the environment

67. The idea of partnership, initiated by the Earth Summit, is also based on
the notion of participatory democracy at all levels, nationally and
internationally. It thus ties in with the principle contained in article 1,
paragraph 1, of the Declaration on the Right to Development that the right to
development is also "an inalienable human right by virtue of which every human
person and all peoples are entitled to participate in, contribute to, and
enjoy economic, social, cultural and political development, in which all human
rights and fundamental freedoms can be fully realized."

68. A development strategy which did not take into account the human, social
and cultural dimension could have only adverse repercussions on the
environment. It was emphasized in particular at the Global Consultation on the
Right to Development as a Human Right that "What constitutes ’development’ is
largely subjective, and in this respect development strategies must be
determined by the people themselves and adapted to their particular conditions
and needs".

69. Failure to take part in decision-making, whether internationally or

nationally, has been and still is at the origin of development choices or the
imposition of development strategies which have had serious adverse effects on
the environment. In this respect, the internal and external factors affecting
the realization of the right to development are so many elements affecting the
realization of the right to the environment. It may thus be said that a
national development strategy is viable from the economic, social and
ecological standpoint only if it gains the active adherence of the various
social strata of the population. Such adherence cannot be gained on the basis
of denying the rights of the human person, whether civil and political or
social, cultural and economic (discrimination, racism, slavery, servitude,
forced migration; freedom of thought, information, participation, association
and expression; the right to work, to health, to an adequate level of living
and to fair remuneration; cultural rights, etc.). Such adherence will also be
lacking if the development model recommended is incompatible with the
fundamental socio-cultural characteristics of the populations concerned. In
this context attention should be drawn to some conclusions reached at the
Global Consultation on the Right to Development as a Human Right, which
acknowledged that:
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"Development strategies which have been oriented merely towards economic

growth and financial considerations have failed to a large extent to
achieve social justice; human rights have been infringed, directly and
through the depersonalization of social relations, the breakdown of
families and communities, and of social and economic life" (para. 153).

70. The right to participation has both individual and collective dimensions;
it covers economic, social, cultural and political aspects which give full
meaning to the concept of democracy. Without going back to the fruitful
discussions on this issue, the Special Rapporteur wishes to emphasize the full
importance of the concept, of participatory democracy in the context of the
environment, without which the concept of sustainable development would be
totally without substance.

71. The United Nations Conference on Environment and Development had the
merit of stressing the importance of this participation by including it in
various solemnly adopted principles (see in particular Principle 10 of the
Declaration of Rio on the participation of citizens, Principle 20 on the
participation of women, or Principle 22 on the participation of indigenous
people and their communities). Moreover, the underlying principle of the
implementation of Agenda 21 is the adequate reinforcement of the role which
the main groups are required to play. A whole section is devoted to this
issue. The Conference was of the opinion that critical to the effective
implementation of the objectives, policies and mechanisms agreed to by
Governments in all programme areas of Agenda 21 would be the commitment and
genuine involvement of all social groups, and that one of the fundamental
prerequisites for the achievement of sustainable development was broad public
participation in decision-making. Furthermore, the Conference recognized, in
the specific context of environment, "the need for new forms of participation"
and "the need of individuals, groups and organizations to participate in
environmental impact assessment procedures and to know about and participate
in (pertinent) decisions". 22/

72. The Conference implicitly linked the notion of real participation in the
right of access to information by noting that "Individuals, groups and
organizations should have access to information relevant to environment and
development held by national authorities, including information on products
and activities that have or are likely to have a significant impact on the
environment, and information on environmental protection measures". 23/
The link between participation and information can also be found in
Principle 10 of the Declaration of Rio.

73. The Vienna Declaration and Programme of Action, adopted by the World
Conference on Human Rights on 25 June 1993, places particular emphasis on
participatory democracy and states solemnly that "Democracy, development and
respect for human rights and fundamental freedoms are interdependent and
mutually reinforcing. Democracy is based on the freely expressed will of the
people to determine their own political economic, social and cultural systems
and their full participation in all aspects of their lives." 24/
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CHAPTER III. OTHER ASPECTS OF THE RELATIONSHIP BETWEEN

HUMAN RIGHTS AND THE ENVIRONMENT

A. Indigenous peoples and the environment

74. "This we know, the Earth does not belong to man; man belongs to the
Earth. This we know, all things are connected, like the blood which unites
one family. Whatever befalls the Earth, befalls the sons of the Earth. Man
did not weave the thread of life; he is merely a strand in it. Whatever he
does to the web he does to himself." This letter from Chief Seattle,
Patriarch of the Duwamish and Squamish Indians of Puget Sound to United States
President Franklin Pierce (1855) underlines the specific relationship of
indigenous peoples to the land.

75. The Special Rapporteur considers the issue of indigenous peoples’ rights
and the environment of such importance that it warrants attention in her final
report. The human rights problems facing indigenous peoples due to
environmental factors are rapidly increasing. The number of communications
received, the seriousness of the many situations presented, and the need for a
multifaceted approach militate in favour of attention being paid to this
issue. In this light, the Special Rapporteur has welcomed the interest of the
Sub-Commission on Prevention of Discrimination and Protection of Minorities
which, in paragraph 2 of its resolution 1990/27 of 31 August 1990, invited the
Special Rapporteur "to take into account the special relationship between
fragile habitats and indigenous peoples, especially with regard to
sustainability". The Commission on Human Rights, in its resolution 1991/44 of
5 March 1991, requested the Secretary-General to invite indigenous peoples and
their organizations to provide the Special Rapporteur with information for
this study.

76. The Special Rapporteur presented an introductory discussion of indigenous

peoples’ rights and the environment in her Note, in her preliminary report, in
her first progress report, and in her second progress report. 25/ She
received useful information at meetings with indigenous leaders that took
place in New York and San Francisco in 1991 and in Rio de Janeiro in
conjunction with the Global Forum at the United Nations Conference on
Environment and Development in 1992. She also has received numerous
communications from indigenous peoples and their organizations throughout the
period of the study and has reviewed a wide range of materials from other
non-governmental organizations and from United Nations and other sources.

77. As indigenous representatives have pointed out to the Special Rapporteur,

international, regional and national action taken by indigenous peoples and
their organizations to promote and protect their rights have always focused on
the need of indigenous peoples to protect their traditional territories. This
is because removal from or destruction or degradation of traditional lands
inevitably leads to serious loss of life and health and damage to the cultural
integrity of indigenous peoples. Describing his people’s relationship to the
land, in 1885 Chief Seattle stated:
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"My people venerate each corner of this land, each shining pine needle,
each sandy beach, each wreath of mist in the dark woods, each glade, each
humming insect; in the thought and practice of my people, all these
things are sacred. The sap rising in the tree carries the memory of the
red man." 26/

78. Echoing Chief Seattle, one Indian leader stated to the Working Group on
Indigenous Populations at its 1985 session:

"Our principal and fundamental struggle is for the land, our territory
and natural resources ... Our defence of the land and natural resources
is for the cultural and human survival of our children ... For us, the
first thing is to secure our land, which belongs to us by right, because
we are the true owners of the land and natural resources. We indigenous
peoples know that without land there can be no education, there can be no
health and there can be no life." 27/

79. Experts in the field have been particularly critical of large-scale

development schemes in Indian lands, as reflected in the background papers
submitted at the United Nations Seminar on the effects of racism and racial
discrimination on the social and economic relations between indigenous peoples
and States (Geneva, 16-20 January 1989). In one background paper,
Prof. Rodolfo Stavenhagen writes:

"Much damage has been done to the indigenous peoples through economic
development projects ... The isolated, marginal areas often occupied by
indigenous peoples constitute the last great and, until recently,
unexploited reserves of natural resources. Neither State planners nor
multinational corporations nor international development agencies have
hesitated to ’incorporate’ these areas into the national and
international economy. In the process, indigenous peoples have suffered
genocide and ethnocide." 28/

80. Another expert, Prof. Vitit Muntarbhorn, writes:

"[Cultural] disintegration is compounded by destruction of the ecology

and habitat upon which indigenous groups depend for their physical and
cultural survival. Deforestation, particularly of rain forests, and
pollution introduced by outsiders jeopardize the modus vivendi of
indigenous groups. The social nexus binding members of the group to the
environment is thus annihilated." 29/

81. In part as a reflection on the comments of the experts at the 1989

seminar, the issue of indigenous peoples was addressed at the 1990 Global
Consultation on the Realization of the Right to Development. Once again, the
assessment of the environmental factors of human rights and indigenous peoples
was harsh:

"The experience of indigenous peoples and development clearly

demonstrated that human rights and development are inseparable, for the
abuse of the rights of indigenous peoples is principally a development
issue. Forced development has deprived them of their human rights, in
particular the right to life and the right to their own means of
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subsistence, two of the most fundamental of human rights. Indigenous

peoples have been, in fact, victims of development policies which deprive
them of their economic base - land and resources - and they are almost
never the beneficiaries.

"It was underlined that the most destructive and prevalent abuses of
indigenous rights are a direct consequence of development strategies that
fail to respect the fundamental right of self-determination. Using
illustrations, participants described how indigenous peoples are
routinely perceived as obstacles to development and excluded from
decision-making in matters that affect them. The result has been the
elimination and degradation of the indigenous land base; destruction,
degradation and removal of natural resources, water, wildlife, forests
and food supplies from indigenous lands either through commercial
exploitation or incompatible land use; the degradation of the natural
environment; removal of indigenous peoples from their lands; and their
displacement or pre-emption from the use of their lands by
outsiders." 30/

82. The relationship between environmental concerns, development and the

rights of indigenous peoples was also addressed at the 1992 United Nations
Conference on Environment and Development and at the 1993 United Nations
Conference on Human Rights. It was also a prominent feature in issues
addressed in conjunction with the 1993 International Year for the World’s
Indigenous People.

83. The United Nations and its specialized agencies have long been concerned
with the human rights of indigenous peoples. International action to
safeguard the rights of indigenous peoples has increasingly focused on the
land and environmental issues. For example, in 1957 ILO promulgated the
Convention concerning the Protection and Integration of Indigenous and Other
Tribal and Semi-Tribal Populations in Independent Countries (No. 107). This
Convention was revised by the Convention concerning Indigenous and Tribal
Peoples in Independent Countries, (1989 No. 169), primarily to address the
land rights issue. These two Conventions are the only international treaties
specifically concerning indigenous peoples, although a number of indigenous
groups signed treaties with Governments during the period of penetration of
indigenous lands. 31/

84. The revised Convention shows the influence of indigenous peoples and
their organizations in its new emphasis on land and the vital importance of
land to indigenous peoples. Convention No. 169 represents substantial
progress at the international level. Article 4 requiring special measures to
protect the environment of indigenous peoples is especially important. This
mandate is reinforced by article 7, which requires the direct participation of
indigenous peoples and environmental impact studies prior to any development
schemes in their territories. Part II (arts. 13-19) of the Convention
specifically addresses land: article 13 recognizes the "special importance
for the cultures and spiritual values" of their land; article 14 recognizes
land ownership rights; article 15 recognizes the right to resources of their
own lands; article 16 protects indigenous peoples from unlawful relocation
from their lands; article 17 provides for procedures for redress, including
the requirement that Governments prevent indigenous people from being deprived
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of their land by unscrupulous acts; article 18 require penalties for land

violations; article 19 requires provision of adequate land to enable
indigenous peoples to live and increase normally.

85. ILO has a well-developed enforcement process by which indigenous peoples

could seek remedies for the violation of the Convention. Regrettably, few
Governments have ratified Convention No. 169 and there is no public
information regarding complaints that are lodged. Additional ratifications
will provide increased access to the ILO dispute-resolution mechanisms,
including a procedure by which individuals may petition the ILO Governing Body
through recognized representative organizations. Under other ILO procedures,
organizations may call the matter to the attention of ILO in the form of a
"representation". Or the ILO Governing Body may open a complaint on its own
motion or at the insistence of a delegate to the International Labour
Conference. Both representations and complaints are investigated, and the
results may be published if the situation is not corrected. 32/

86. The study on racial discrimination, begun by the Special Rapporteur of

the Sub-Commission, Mr. Hernán Santa Cruz, in 1965, contained a chapter on
indigenous peoples. 33/ The Special Rapporteur’s suggestion that the
United Nations study the situation of indigenous peoples in a comprehensive
fashion led to the appointment in 1971 by the Sub-Commission of Mr. José
Martínez Cobo to carry out such a study. His report 34/ contains much
discussion about indigenous peoples and their land. In 1981, the
Sub-Commission proposed the establishment of the Working Group on Indigenous
Populations, which met for the first time in 1982. The Working Group has
prepared a draft declaration on indigenous rights, which is still under
consideration by the Working Group. Throughout the drafting period,
indigenous land rights and environmental concerns have been the most keenly
contested, with indigenous organizations insistent that any formulation of
their rights must firmly protect their lands from exploitation and ecological
degradation. Their concern is clearly reflected in the 1992 draft as
contained in the report of the Working Group on its tenth session, 35/
especially in operative paragraphs 17-20 and 38 which the Special Rapporteur
set out in her second progress report. 36/

87. As a further reflection of serious concerns about indigenous peoples,

human rights and the environment, in 1992 the United Nations sponsored the
United Nations Technical Conference on Practical Experiences in the
Realization of Sustainable and Environmentally Sound Self-development of
Indigenous Peoples. The report and the background papers 37/ provide an
analysis of the impact of ecological devastation on indigenous peoples and
their struggle to protect their land and its resources, and to develop their
economies in an ecologically sustainable fashion that does not jeopardize
traditional ways.

88. In her review of cases brought to the Human Rights Committee and to the
Inter-American Commission on Human Rights by or on behalf of indigenous
peoples, the Special Rapporteur is impressed by the fact that the human rights
violations at issue almost always arise as a consequence of land rights
violations and environmental degradation and indeed are inseparable from these
factors. In her progress report 38/ the Special Rapporteur described
Communication No. 167/1984 addressed to the Human Rights Committee by
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Chief Ominayak and the Lubicon Lake Band of Canada involving the threat to the
lives and traditional ways and culture of the Band posed by oil and gas
exploitation. The Human Rights Committee found violations of article 17
(minority/cultural rights) of the International Covenant on Civil and
Political Rights in that case. 39/

89. At the Inter-American Commission on Human Rights the two cases already
presented by the Special Rapporteur - the Yanomani case in Brazil 40/ and
the Huaorani case in Ecuador 41/ raise questions concerning violations of
the right to life, the right to health, the right to the promotion and
protection of indigenous peoples’ culture caused by development projects in
their traditional territories. Other cases reviewed by the Inter-American
Commission include the Guahibo Indians of Colombia, the Ache and Toba-Maskoy
of Paraguay, the Miskito of Nicaragua, the Mayan of Guatemala, the Inuit and
Athabascan of Alaska, the Kanaka Maoli of Hawaii. The Inter-American
Commission has also raised Indian human rights issues in reports of States
parties to the American Convention on Human Rights, 42/ involving the human
rights consequences of displacement from and/or degradation of traditional
indigenous lands.

90. The Inter-American Commission, in its Report on the Situation of Human

Rights of a Segment of the Nicaraguan Population of Miskito Origin, 43/
analysed relocation of indigenous peoples from their traditional lands from
the point of view of human rights. The Commission found that involuntary
relocation of indigenous peoples could be justified only under article 27 of
the American Convention which allows for derogation of rights "in time of war,
public danger, or other emergency that threatens the independence or security
of a State Party". The Inter-American Commission reiterated that the danger
must be extremely serious. However, involuntary relocation under these
circumstances "should not outlive the emergency, and termination of the
emergency should allow the return of the civilian populace to their original
region". 44/ The Inter-American Commission asserted that relocation for
lesser national goals, such as economic development, do not meet article 27
criteria, and may not be undertaken involuntarily. 45/

91. National courts are also increasingly being presented with indigenous
human rights issues. Here too, the preponderance of cases involve indigenous
lands and subsistence rights being effected by confiscation, degradation,
inappropriate development or inappropriate regulation. In her second progress
report, the Special Rapporteur described the Organización Indígena de
Antioquia v. Codechoco y Madarien, 46/ in which the court emphasized that
the destruction of the forest lands of indigenous peoples places their lives
and cultures in danger. In this regard the Special Rapporteur would also like
to note that in Regina v. Sparrow, 47/ the Canadian Supreme Court in 1990
upheld the fishing rights of Canadian indigenous peoples. In holding that
Canada must be held to a "high standard of honourable dealing", the Court
emphasized that the rights of indigenous peoples "must be interpreted flexibly
to permit their evolution over time".

92. The Special Rapporteur notes with interest initiatives by indigenous

peoples themselves to encourage indigenous self-development. The 1992
United Nations Technical Conference referred to above produced a wide array of
useful strategies, many of them currently employed by indigenous people.
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Recent sessions of the Inter-Commission Task Force on Indigenous Peoples of

the IUCN World Conservation Union, at which indigenous leaders and others
exchanged information and presented case studies on indigenous sustainable
development, 48/ are also encouraging developments. The Special Rapporteur
is pleased by the increasing cooperation between indigenous peoples and their
organizations and environmental organizations which should enhance the
abilities of indigenous peoples to preserve their territories from ecological
destruction.

93. In spite of some encouraging events, the Special Rapporteur is aware that
existing efforts to protect indigenous peoples’ rights and their fragile
habitat have been inadequate. The situation of indigenous peoples, especially
as it relates to human rights and the environment, is at a critical point. No
one single solution can hope to address the multifaceted problems. None the
less, she is aware that alternatives to large-scale development schemes, with
their potentially destructive consequences, exist.

94. These alternatives must be encouraged. Indigenous peoples must genuinely

participate in all decision-making regarding their lands and resources. The
international community, in particular the United Nations and regional
monitoring procedures, must respond accordingly.

B. Protection of the environment in periods of armed conflict

95. Montesquieu wrote in L’esprit des lois: "The right of peoples is

naturally based on this principle - that the various nations must in peace do
one another the greatest good and in war the least evil". Despite the
United Nations Charter’s prohibition - in Article 2, paragraph 4 - of the use
of force in international relations, war unfortunately remains a constant that
fully demonstrates the value of international humanitarian law, a law which
imposes rules for the conduct of hostilities, restricts the methods and means
of warfare, and protects persons, property and environment liable to be
affected in conflicts.

96. The principle of humanity and the concept of proportionality impose

limits on war, the Declaration of St. Petersburg recognizing as early as 1868
that "the only legitimate object which States should endeavour to accomplish
during war is to weaken the military forces of the enemy".

97. For their part, the Hague Conventions of 18 October 1907 and the
regulations relating thereto contain provisions which deal with the protection
of the environment, even though this term is not expressly used. In a report
submitted to the General Assembly in 1993, 49/ ICRC rightly notes that "The
destruction of property in times of armed conflict is also restricted by
customary international law".

98. The Stockholm Declaration of 1972, apart from enunciating the general
duty to protect and improve the environment, expressly states, in
Principle 26, that "Man and his environment must be spared the effects of
nuclear weapons and all other means of mass destruction. States must strive
to reach prompt agreement, in the relevant international organs, on the
elimination and complete destruction of such weapons".
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99. The World Charter for Nature recognizes that "Nature shall be secured
against degradation caused by warfare or other hostile activities" (sect. I,
para. 5) and that "Military activities damaging to nature shall be avoided"
(sect. III, para. 20).

100. These fundamental principles find their legal expression in various

international instruments, and more particularly in the 1977 Protocol I
Additional to the Geneva Conventions of 12 August 1949, relating to the
Protection of Victims of International Armed Conflicts. Protocol I contains
two provisions relating to the protection of the environment:

"Article 35 - Basic rules

...

"3. It is prohibited to employ methods or means of warfare which are

intended, or may be expected, to cause widespread, long-term and severe
damage to the natural environment.

...

"Article 55 - Protection of the natural environment

"1. Care shall be taken in warfare to protect the natural environment

against widespread, long-term and severe damage. This protection
includes a prohibition of the use of methods or means of warfare which
are intended or may be expected to cause such damage to the natural
environment and thereby to prejudice the health or survival of the
population.

"2. Attacks against the natural environment by way of reprisals are

prohibited."

101. As emphasized by the International Committee of the Red Cross (ICRC) in

its reply to the Special Rapporteur, 50/ several factors have generally
speaking prompted States to adopt, at the international level, rules relating
to the protection of the environment: growing awareness of the deterioration
of the environment; the realization of the risks entailed for the environment
by certain technical and technological developments; or finding that certain
types of damage to the environment are international in character. In the
case of the protection of the environment in periods of armed conflict
(principal sphere of application of the rules of international humanitarian
law), two additional factors may be mentioned: the evaluation of the damage
caused by the massive use of defoliants during the Viet Nam war, and a concern
to differentiate ever more precisely between military objectives and civilian
property.

102. In its analysis of the articles cited above, ICRC considers that the two
provisions, which appear similar, do not duplicate one another, given the
place they occupy in the systematics of the treaty and the objective they
pursue: article 35, paragraph 3, falls within the context of methods and
means of warfare and refers in particular to the principle - fundamental in
international humanitarian law - whereby it is forbidden to inflict
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unnecessary harm. It protects the environment as such and is therefore

broader in scope than article 55, which is intended to protect the civilian
population from the effects of warfare on the environment. In both cases the
following are prohibited: (a) attacks on the environment as such; and
(b) making use of the environment as an instrument of warfare". 51/

103. ICRC considers that, besides article 35, paragraph 3, and article 55,
other provisions of Protocol I touch incidently on protection of the
environment in armed conflict. In particular, article 56 deals with the
danger to the environment resulting from the destruction of dams, dykes or
nuclear electrical generating stations. Under the heading "Protection of
objects indispensable to the survival of the civilian population", article 54
prohibits in certain circumstances the destruction of, among other things,
agricultural areas or irrigation works. Finally, article 36 obliges the
parties to Protocol I to determine whether the acquisition, development or use
of a new weapon would be compatible with international law. Of course, the
rules on the protection of the environment are to be taken into account during
this assessment.

104. Several other legal instruments also deal with protection of the
environment in wartime, in particular: the Protocol for the Prohibition of
the Use in War of Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare, of 17 June 1925; the Convention on the
Prohibition of the Development, Production and Stockpiling of Bacteriological
(Biological) and Toxin Weapons and on their Destruction, of 10 April 1972; the
Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques, of 10 December 1976; the Convention on
Prohibitions or Restrictions on the Use of Certain Conventional Weapons which
may be Deemed to be Excessively Injurious or to have Indiscriminate Effects,
of 10 October 1980; the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on their Destruction,
of 13 January 1993; the Convention for the Protection of Cultural Property in
the event of Armed Conflict, of 14 May 1954; and the Convention concerning the
Protection of the World Cultural and Natural Heritage, of 23 November 1972.

105. ICRC states that the rules protecting the victims of non-international
armed conflict are less well developed than those governing international
armed conflict. Article 3 common to the four Geneva Conventions of 1949 does
not say anything about protecting the environment during civil wars; it
addresses only humanitarian issues in the strictest sense. Protocol II
Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts, contains no
provisions relating explicitly to the environment. However, article 14, on
the protection of objects indispensable to the survival of the civilian
population, has a direct impact on warfare and the environment, with its
prohibition of attacks on agricultural areas, irrigation works and so on.

106. The protection of the environment in time of armed conflict has come
tragically to the fore in the Iran-Iraq conflict, the Gulf war and in the
conflict in the former Yugoslavia. Although the ecological consequences of
these recent conflicts cannot yet be determined precisely, they have fuelled
questions about the content, limits, shortcomings and indeed effectiveness of
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international humanitarian law intended to protect the environment as such,

together with persons and their property, against damage to the environment in
the course of hostilities. 52/

107. Although the United Nations Conference on Environment and Development did
not pay the closest attention to the question of protection of the environment
in periods of armed conflict, Agenda 21 states that "Measures in accordance
with international law should be considered to address, in times of armed
conflict, large-scale destruction of the environment that cannot be justified
under international law". In addition, the Declaration of Rio recognizes, in
Principle 24, that "Warfare is inherently destructive of sustainable
development. States shall therefore respect international law providing
protection for the environment in times of armed conflict and cooperate in its
further development, as necessary".

108. For its part, the General Assembly adopted decision 46/417
on 9 December 1991 at the conclusion of its deliberations on the agenda item
entitled "Exploitation of the environment as a weapon in times of armed
conflict and the taking of practical measures to prevent such exploitation".
It decided, in resolution 48/30 of 9 December 1993, to continue to consider
the question of the protection of the environment in periods of armed conflict
in the context of the United Nations Decade of International Law. At the same
time, it took note with appreciation of the results of the International
Conference on the Protection of War Victims, (Geneva, 30 August to
1 September 1993), and its Final Declaration "as an important means for
reaffirming, strengthening and promoting international humanitarian law", and
reminded "all States of their responsibility to respect and ensure respect for
international humanitarian law in order to protect the victims of war".

109. The aims of this Conference, convened by the Swiss Government on the
initiative of ICRC, were, inter alia "to elicit a strong reaction from the
various States to widespread violations of international humanitarian law" and
to consider "the measures which the States undertake and should further
develop to prevent violations of international humanitarian law". On the
question of the environment, the participants solemnly declared the need to
"Reaffirm and ensure respect for the rules of international humanitarian law
applicable during armed conflicts protecting cultural property, places of
worship and the natural environment, either against attacks on the environment
as such or against wanton destruction causing serious environmental damage,
and continue to examine the opportunity of strengthening them".

110. In conclusion, the participants affirmed their "conviction that, by

preserving a spirit of humanity in the midst of armed conflicts, international
humanitarian law keeps open the road to reconciliation, facilitates the
restoration of peace between the belligerents, and fosters harmony between all
peoples". The Special Rapporteur fully shares this conviction. Its
translation into reality depends on the realization of the commitment entered
into by the States parties to the Geneva Conventions to "respect and to ensure
respect for" these Conventions "in all circumstances", and on the positive
measures to be taken with a view to the prevention of conflicts and of
violations of humanitarian law.
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C. The environment, and international peace and security

111. The Special Rapporteur commented on the relationship between the

environment, human rights, and international peace and security in her note
and in her second progress report. 53/ Maintenance of international peace
and security is a fundamental purpose of the United Nations and a duty of the
Organization and its Member States. 54/ The importance of peace is
underscored by its inclusion as a fundamental right in the Universal
Declaration of Human Rights, especially its article 28. The Declaration on
the Use of Scientific and Technological Progress in the Interests of Peace and
for the Benefit of Mankind 55/ and the Declaration on the Right of Peoples
to Peace 56/ are especially relevant to the issue of human rights and the
environment.

112. The present potential for purposeful or even accidental environmental

harm is a serious threat to peace and security, whether during war or in
peacetime. Nuclear weapons and biological and chemical substances can
eliminate much if not all of life. There are now many methods of altering the
climate and destroying essential foodstuffs, and the deprivation that would
certainly follow would create social unrest and instability. Population
pressures, with or without intentional environmental degradation, will
inevitably lead to States vying with each other for resources essential for
survival.

113. The International Law Commission recognizes the ominous potential of

purposeful environmental destruction and has characterized serious and
intentional harm to the environment as a crime against humanity. In the
course of the debates in the Commission, it has been stated that acts with
grave consequences to humans and the environment should be considered crimes
and that there should be culpability for "flagrant errors and omissions". The
debates also reflect the growing trend that destruction of the property of an
ethnic group should be included in the concept of environmental harm.

114. In the Special Rapporteur’s view, acts with substantial environmental and
human damage falling short of crimes against humanity can still have a
negative impact on international peace and security and are within the scope
of the Declaration on the Use of Scientific and Technological Progress in the
Interests of Peace and for the Benefit of Mankind, the Charter of Economic
Rights and Duties of States, and other relevant international instruments.
The International Law Commission has also been considering this problem in
preparing a draft instrument on international liability for injurious
consequences arising out of acts not prohibited by international law. 57/

115. The World Health Organization has for its part notified the Economic and
Social Council that, pursuant to resolution WHA 46.40 adopted by the World
Health Assembly on 14 May 1993, the Director-General filed in the Registry of
the International Court of Justice a request for an advisory opinion on the
following question:
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"In view of the health and environmental effects, would the use of
nuclear weapons by a State in war or other armed conflict be a breach of
its obligations under international law, including the WHO
Constitution?" 58/

116. The Special Rapporteur believes that it would also have been useful to
ask that distinguished Court whether the manufacture, testing, possession and
stockpiling of nuclear weapons and other weapons of mass destruction are
lawful under international law.
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CHAPTER IV. ENVIRONMENTAL DEGRADATION AND ITS IMPACT ON VULNERABLE GROUPS

A. Overview

117. Major environmental crises, such as the 1967 (Torrey

Canyon), 1978 (Amoco Cadiz) and 1980 (EKOFIX) oil-spills, the Seveso (1976)
and Bhopal (1984) chemical disasters, and the Chernobyl nuclear accident
(1986), have highlighted the transnational nature of their impact and their
multidimensional repercussions. The state of the environment is nowadays
perceived as a worldwide problem that should be addressed globally, in a
coordinated and coherent manner and through the concerted efforts of the
international community. Issues such as the preservation of natural balances,
the stability of the ecosystem as a whole, the preservation of natural
resources or the very survival of the Earth are urgent because of the scale of
environmental damage to the planet and its impact on the individual, on his
well-being, and consequently on the enjoyment of fundamental rights, including
the right to life.

118. According to the World Commission on Environment and Development

(Brundtland Commission), since 1970, when the first Earth Day was celebrated,
the world has lost almost 200 million hectares of forest; 11.4 million
hectares of tropical forest have disappeared each year; one fifth of arable
land has been affected by desertification. The Commission analysed the
ecosystems and economic structures of various developed and developing
countries. It drew attention to the need to match regulatory measures with
planning in order to achieve "sustainable development" that would make it
possible to satisfy the needs of present generations without jeopardizing the
opportunities of future generations. The 1992 Earth Summit again highlighted
the major threats looming over the planet and the interaction among various
phenomena, as is illustrated by the following examples:

1. Climate changes

119. Emissions resulting from human activities increase the atmospheric

concentration of gases producing a greenhouse effect. The greenhouse effect
will take the form of heating up the planet, probably accompanied by a rise in
the level of the sea that might seriously threaten the sea and the climate.
The rise in that level in many parts of the world, in particular islands and
low-lying areas, will have an effect on life, land, lifestyles, natural
resources, cultural heritage and so on. Apart from the fact that the varying
effects of climate on socio-economic systems have always imposed substantial
constraints on development, the climate changes expected from the greenhouse
effect may render those constraints utterly unbearable (effects on the water
cycle and on food production chains; floods and drought; increase in the
number, intensity and seriousness of natural disasters). These phenomena,
while producing their own adverse effects on the enjoyment of human rights,
will also worsen several existing problems and will affect most of all those
populations, regions and countries that are particularly vulnerable.

120. In the words of the Ministerial Declaration of the Second World Climate
Conference, "The potential impact of such climate change could pose an
environmental threat of an up to now unknown magnitude; and could jeopardize
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the social and economic development of some areas. It could even threaten
survival in some small island States and in low-lying coastal, arid and
semi-arid areas". 59/

2. Deforestation and wood stripping

121. Forests are subjected to a great many natural and man-made pressures
(climate changes; air pollution; intensive logging, etc.) which have led to
substantial losses of standing timber. The stripping and wasting away of
forests are in evidence in all parts of the world, whether boreal, temperate
or tropical; they contribute to environmental degradation (drought,
desertification, erosion, genetic losses, extinction of species of fauna and
flora, etc.) and to the disruption of local communities, their way of life and
their crops, and impair their well-being and health.

3. Biological diversity

122. According to the progress report of the Secretary-General of the

United Nations Conference on Environment and Development on conservation of
biological diversity:

"Biological diversity is fundamental to human life. It is a basic

feature of the way in which living organisms are structured. As such, it
provides support for ecosystems, for the regulation of water and the
atmosphere and the basis for agricultural production. When genetic
variations are lost, therefore, not only are specific and potential
properties and adaptations also lost, but with them species are
diminished, ecosystems are impaired and the ability to sustain human life
is damaged".

4. Pollution, discharge of toxic and dangerous products, etc.

123. Pollution of the air, water and land from various sources, in particular
through industrial disasters, presents great risks to the health, life and
well-being of populations. Ecological disasters such as those of Bhopal and
Chernobyl, to mention only two, have claimed many victims and caused shifts of
population. According to the estimates of the League of Red Cross and Red
Crescent Societies, "the Chernobyl disaster affected and still affects some
4 million people who, not to speak of the 135,000 evacuees from the villages
closest to the power station, are still living on land contaminated by
radiation and growing their food on it. These potential victims fear for
their future, fear the illnesses and genetic mutations that the medical
experts are still unable to predict; but most of them have nowhere else to
go. 60/

124. The effects of ecological accidents, whether nuclear or not, are not
merely dangerous to health; they are liable to contaminate land, watercourses,
the air and the atmosphere. The same applies to the discharge of untreated
wastewater into the ground and into surface water bodies, leading to the
concentration of chemicals, dangerous substances and pathogenic agents in
living environments. Furthermore these accidents are accompanied by traumas
and emotional shocks associated with the evacuation of whole communities,
their displacement and the splitting up of families. Another result is the
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breakdown of the habitual lifestyle of the populations, who in addition live

in a state of constant anxiety. The absence or shortage of reliable
information about the induced or delayed effects of such disasters does
nothing to reassure those populations. In some instances, where the disasters
have occurred in underdeveloped regions or have befallen marginalized
population groups, the relief, assistance and allowances extended to the
victims fall far short of the requisite minimum standards, to the point where
it is possible to detect practices akin to a veritable discrimination that
flouts the principles of dignity and equality innate in every human being.

5. Transboundary transfer of hazardous wastes

125. The transfer of toxic and dangerous products and wastes across frontiers
and their dumping also lead to violations of human rights, not only having
regard to the risks incurred by man and his environment but also considering
the observed trend to export dangerous substances produced in the North to
developing countries, particularly in Africa. These intolerable practices,
which impose severe risks on the South, are particularly outrageous in that
they transfer problems to particularly vulnerable regions and populations
(lack of resources for monitoring and prevention and of appropriate
technology; absence of suitable legislation; broken-down sanitation;
information that is unreliable, unusable, non-existent or inaccessible).

126. Until the mid-1980s, 80 per cent of the imports and exports of hazardous
waste were between developed countries. 61/ In 1988, from 2 to 2.5 million
tons of waste were transported among the European member countries of
OECD. 62/ It was essentially only after 1986 that the North-South trend
emerged. In this connection, Greenpeace has pointed out that between 1986
and 1988 over 6 million tons of hazardous waste were exported from the
developed countries to the developing countries and the countries of
Eastern Europe, in particular Romania and Hungary. 63/ It also asserted
that of the 100 to 300 million tons of waste produced each year by the
developed countries, some 50 million were shipped to Africa. 64/

127. While the local capacity for hazardous waste storage and elimination in
the developed countries is steadily declining, the volume of waste produced
continues to rise. Thus, the European Union is reported to have the capacity
to eliminate an estimated 10 million tons of waste while it produces as much
as 30 million tons a year. 65/

128. The scandals of 1987 and 1988, in particular the revelation concerning
contracts between Western companies and African countries to which the
companies concerned paid ridiculously low sums for land on which they could
get rid of toxic waste, prompted the developing countries, and especially the
countries of Africa, to react. Within this context, the Council of Ministers
of the Organization of African Unity declared, in resolution 1153 (XLVIII)
dated 25 May 1988, that such dumping was "a crime against Africa and the
African people". 66/

129. Similarly, on 7 December 1988, the United Nations General Assembly

adopted a resolution condemning the dumping of nuclear and industrial wastes
in Africa. 67/
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130. Simultaneously, the developing countries engaged in the drafting of a

convention to regulate the transboundary movement of hazardous wastes in order
fully to implement the principles already developed at the 1972 United Nations
Conference on the Human Environment and by the United Nations Development
Programme. 68/

131. The 1989 Basel Convention on the Control of Transboundary Movements of

Hazardous Wastes and their Disposal was the outcome of a compromise between
the advocates of a complete ban on transboundary movements of wastes and those
who wished to define the legal framework and conditions for the international
transfer of wastes.

132. The 1989 Basel Convention marks a step forward in the assumption of
responsibility for the problem, although it was considered inadequate by many
countries, particularly those in Africa which drew up the Bamako Convention on
the Banning of the Import into Africa and the Control of the Transboundary
Movement of Hazardous Wastes within Africa, adopted on 29 January 1991.

133. At the 1992 Earth Summit, the international community expressed its
concern that part of the international movement of hazardous wastes was in
violation of national legislation and of existing international instruments,
to the detriment of the ecology and public health of all countries, in
particular the developing countries.

134. The following objectives were adopted within the framework of Agenda 21
in order to prevent the illegal transboundary movement of hazardous wastes:
(a) to reinforce national capacities to detect and halt any illegal attempt to
introduce toxic and dangerous products into the territory of any State, in
contravention of national legislation and relevant international legal
instruments; (b) to assist all countries, particular developing countries, in
obtaining all appropriate information concerning illegal traffic in toxic and
dangerous products; (c) to cooperate, within the framework of the 1989 Basel
Convention in assisting countries that suffer the consequences of illegal
traffic.

135. Governments were also urged to exchange information on illegal

transboundary movements of hazardous wastes.

136. In the Vienna Declaration, the World Conference on Human Rights, held
in 1993, recognized that "illicit dumping of toxic and dangerous substances
and waste potentially constitutes a serious threat to the human rights to life
and health of everyone" (A/CONF.157/24 (Part I), para. 11).

B. Vulnerable groups

137. The Special Rapporteur has already referred to the vulnerability of

indigenous peoples to ecological hazards (chap. III, sect. A), and to that of
individuals and groups who are marginalized by poverty (chap. II, sect. A).
The specific situation of peoples under domination will be considered later.
The following sections are concerned with other groups that illustrate this
vulnerability, albeit not exhaustively.
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1. Women

138. There was good reason why Agenda 21, which was drawn up by the
United Nations Conference on Environment and Development, devoted considerable
attention to "Global action for women towards sustainable and equitable
development", and proposed a series of objectives for national Governments,
together with activities and tangible measures to be undertaken to achieve the
full integration of women into the development process and to ensure the
effective implementation of their rights. 69/ The Declaration of Rio also
notes that "women have a vital role to play in environmental management and
development. Their full participation is therefore essential to achieve
sustainable development" (Principle 20).

139. The decisive role of women in promoting development and preserving the
environment is now firmly established. It is recognized that women’s
organizations have promoted environmental awareness, 70/ and that women
play a critical role in the management, use and protection of natural
resources and the environment, 71/ and in environmental education.

140. Even if, because of their traditional knowledge, skills and experience,
women are no longer regarded as victims of environmental degradation, but as
agents that possess essential assets for its preservation, it is still true
that in practice they are the first to suffer from environmental degradation
and among the last to enjoy the right to a satisfactory environment.

141. The Special Rapporteur notes that discrimination against women -

regardless of their acknowledged formal rights and the ambitious programmes of
action devoted to them, in conjunction with the social inertia and prejudice
surrounding the issue of women’s emancipation, accounts for the precarious
situation of women and the thankless tasks that bring them face to face with
the consequences of the deterioration in living, working, housing and other
conditions, depriving them of opportunities to enjoy their fundamental rights.

142. In addition, because of delays in the enjoyment of civil, cultural and

political rights, it is not possible to ensure effective and genuine
participation by women in public life, and they are thereby prevented from
influencing decision-making. Even if a favourable trend is discernible among
local communities, in which women are increasingly involved in carrying out
development projects, such participation needs to be further encouraged,
developed and expanded. Moreover, it does nothing to remedy the fundamental
imbalance in participation in public life and political office, from which
women are virtually excluded, even in the developed countries. According to
UNDP statistics for 1993, women in the developed countries made up 40 per cent
of the total labour force, but still held fewer than 10 per cent of
parliamentary seats. They held less than 5 per cent of ministerial and other
senior posts throughout the world. 72/

143. The Special Rapporteur cannot fail to note a disturbing discrepancy

between recognition of the decisive role played by women in promoting
sustainable development and the place they occupy in practice. As was noted
in a report by the United Nations: 73/
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"Without their political participation, progress in the other areas

may be slow since it is often dependent on resources that come from
public sources. There is a close reciprocal relationship between the
general advancement of women and the participation of women in
decision-making. Women’s political participation will be enhanced if
social and economic support structures exist, legal discrimination is
eliminated and negative stereotypes are banished from education and the
media. No country can afford not to utilize all its human resources.
Women comprise half the world’s pool of potential talent and ability.
The importance of their fundamental biological and social roles is clear,
and, though their input is often unrecognized, they are major
contributors to national economies through their paid and unpaid labour.
Excluding women from positions of power and from elected bodies
impoverishes public life and inhibits the development of a just society.
In short, without the full participation of women in decision-making, the
political process will be less effective than it can and should be, to
the detriment of society as a whole".

2. Children and young people

144. Children and young people make up approximately 30 per cent of the
world’s population and virtually half the population of the developing
countries. They are a force for the future in which investment is vital.
They are extremely vulnerable to the consequences of environmental degradation
and are entitled to effective protection. The vitality of these ardent
defenders of nature should be channelled in order to transform them into
active supporters of the ecological cause.

145. As was underscored by UNICEF in The state of the world’s children 1994,
"the cause of meeting the most basic needs of all children must now be taken
up with a new determination, both for its own sake and as an essential step
towards resolving the problems of poverty, population growth and environmental
deterioration". However, there is no forgetting the figures that bring us
face to face with reality. Fourteen million children die each year from
preventable diseases. Over the past 10 years alone, 1.5 million children are
estimated to have died during conflicts, while 4 million bear the scars of
conflict. There are 5 million refugee children, and another 12 million have
been displaced. 74/ The child victims of rape, ill-treatment and torture,
child soldiers, street children, unwilling drug pushers, economically
exploited child labourers, sexually abused children, children in debt bondage,
hundreds of millions of children are the victims of contemporary forms of
slavery. 75/ They are trapped in what UNICEF has rightly described as the
"poverty-population-environment" (PPE) spiral. The huge potential of children
and youth is jeopardized by "the mutually reinforcing problems of persistent
poverty, rapid population growth and environmental degradation".

146. Meeting the essential needs of the poorest for adequate nutrition, safe
water, basic health care, basic education and family planning is one of the
most powerful ways of breaking into the destructive synergisms of the
poverty-population-environment problem.
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147. Education and a minimum of prosperity are essential if environmental

problems are to be contained and if poor people too are to have a stake in the
future. 76/

3. Disabled persons

148. The Special Rapporteur wishes to refer to the situation of disabled

persons in order to highlight the particular impact of the environment on the
enjoyment of their rights as human beings and of their specific rights to
enhanced protection which derive from the need to cater for their special
requirements.

149. While environmental factors are frequently responsible for disability,

the environment in which a disabled person lives is also likely to restrict
access to essential care and services, aggravate disabilities, restrict the
possibility of enjoying fundamental rights, and even lead to their total
denial (right to life, to health, to work, to participation; discrimination,
etc.).

150. The Special Rapporteur has discerned a tendency to minimize the problems
posed by disabilities, despite the fact that estimates, such as those of WHO,
indicate that over 500 million individuals, i.e. 10 per cent of the world’s
population, suffer from some form of disability. In addition, 300 million of
them live in the developing countries, where they are confronted with the
inadequacy of assistance and rehabilitation services. Moreover, according to
estimates by ILO, one third of disabled people, i.e. 160 million, are women,
and 140 million children. These estimates lead to an unavoidable conclusion:
the impact of the environment on disabled persons is felt at all stages, at
several levels and in varying degrees - upstream as a cause of disability, and
downstream by making the possibility of reintegration more difficult.
Consequently, throughout their lives, disabled people suffer violations of
their rights as individuals, as women or children, as disabled persons - a
situation that is exacerbated by poverty.

151. The Special Rapporteur underscores the need for preventive measures to
reduce the risk of disability. Non-governmental sources increasingly
highlight environmental factors as causes of disability (air and water
pollution; armed conflict, chemical weapons and vestiges of war, particularly
mines; unhealthy living conditions; inadequate standard of living; natural
disasters; technological accidents; nuclear catastrophes; dumping of toxic or
hazardous products, etc.).

152. Where natural disasters or man-made accidents are concerned, disabled

people are the first victims; they require special assistance which is not
always available. This issue deserves special attention, as do the conditions
for the reintegration of disabled people into the social, cultural, economic
and political life of their country. In this connection, the Special
Rapporteur endorses the recommendations contained in the United Nations study
Human rights and disabled persons. 77/
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153. As was stressed by a representative of Disabled Peoples’ International:

"We can look at the effects on people with disabilities from

different points of view: (i) when environmental problems occur in the
form of a catastrophe, the first victims are disabled peoples. Other
people have better possibilities to look for shelter or space; (ii) when
environmental problems occur step by step, the first victims are disabled
people because they are many times weaker and more sensitive to
pollution, for example; (iii) environmental problems make the world less
accessible and disabled people are more dependent on others. Life is
more complicated and more handicapping. Without these problems disabled
people could live more independently; (iv) the man-made environment has
been planned almost everywhere until recently without considering
disabled people as a part of the community. People make environmental
problems; (v) environmental threats are disabling and make disabilities
more serious." 78/

4. Environmental refugees

154. The Special Rapporteur reiterates the concern she has previously
expressed for the plight of persons displaced from their homes by adverse
environmental conditions. 79/ Such persons have a wide range of rights -
whether or not they qualify as "refugees" under the restrictive definition
provided in the 1951 Convention relating to the Status of Refugees 80/ or
its 1967 Protocol; 81/ or under the more expansive definitions in the
1969 Organization of African Unity Convention governing the Specific
Aspects of Refugee Problems in Africa 82/ or the 1984 Cartagena Declaration
on Refugees. 83/ At a minimum, such persons have the right to life, the
right to health, food and shelter, and the right not to be sent to any
location where their lives or security are endangered.

155. For the purposes of this report, the Special Rapporteur uses
"environmental refugee" to refer to anyone forced to leave his or her
normal habitat because of serious environmental disruption. This includes
those who flee their homes temporarily and those forced to flee permanently,
internally or across international borders.

156. Environmental refugee flows may arise from purely natural events,
such as earthquakes; purely human activities, such as industrial accidents;
or combinations of natural and human acts, such as excessive rainfall in a
deforested area, which gives an otherwise manageable natural event disastrous
consequences. The Special Rapporteur notes with special concern that all
three types of environmental catastrophe strike poorer, less developed areas
with significantly higher frequency than they do more affluent areas. 84/

157. The types of natural events that contribute to the creation of

environmental refugees include drought, famine, tropical storms and
earthquakes. Human factors that combine with natural factors to create
environmental refugee flows tend to involve matters of environmental
management, including land degradation (desertification), deforestation and
depletion of the natural resource base. Purely human-generated environmental
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disasters include the construction of large dams, industrial accidents such as

chemical explosions and nuclear accidents, improper handling of hazardous
wastes and, of course, armed conflict and its consequences.

158. The Special Rapporteur is also concerned by the environmental degradation

that often results from the sudden influx of refugee populations on already
stressed lands. This degradation stems from increased demands for food,
fuel and other subsistence resources. The Special Rapporteur notes the
General Assembly’s increasing attention to this set of problems. In
resolutions passed during its forty-eighth session, the General Assembly
noted the environmental pressures posed by refugees and displaced persons in
Central America (res. 48/117), in Azerbaijan (res. 48/114) and in many parts
of Africa (res. 48/118).

159. People who flee their homes for environment-related reasons require
humanitarian assistance simply to meet their basic survival needs. They do
not necessarily seek political asylum or require the kind of international
protection implied by the term "refugee". Many are displaced within their
own countries, yet the scope of the problem may exceed the capacity of
their Government and may therefore involve the international community.
In this regard, the Special Rapporteur has examined the reports 85/ of
Mr. Francis Deng, the representative of the Secretary-General on internally
displaced persons to the Commission on Human Rights. She hopes the
international community will implement the concrete suggestions made by
the representative.

160. UNHCR is particularly well placed to facilitate the delivery of essential

services to displaced persons in emergency situations, on humanitarian
grounds. 86/ The General Assembly affirmed the need to incorporate
environmental concerns into the work of the UNHCR. UNHCR has recognized the
need to improve understanding of the relationship between migration refugee
flows and development and environmental issues. 87/
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CHAPTER V. ANALYSIS OF THE EFFECTS OF THE ENVIRONMENT

ON THE ENJOYMENT OF FUNDAMENTAL RIGHTS

161. Recent sources observe that as from the beginning of the twenty-first
century more than half the world’s population will be living in urban areas.
In 2025 this figure will have reached 65 per cent, or 5 billion persons.
More than 850 million people live in regions affected by desertification.
The destruction of the tropical forests is advancing at a rate of
approximately one football pitch per second. The inhabitants of the
industrialized countries still consume 10 times as much commercial energy as
those of the developing countries and produce 71 per cent of the world’s
carbon dioxide emissions and 68 per cent of its industrial waste. Poverty
particularly affects children, 13 million of whom die annually before their
fifth birthday. Women are still barred from posts of responsibility and hold
fewer than 10 per cent of parliamentary seats throughout the world. More than
2 million deaths and billions of cases of disease can be attributed to
pollution. Between 400 million and 700 million people, mainly women and
children from poor rural areas, are affected by the smoke-filled atmosphere of
their homes. Between 300,000 and 700,000 premature deaths annually can be
attributed to pollution in cities. The thinning of the ozone layer may cause
annually 300,000 additional cases of skin cancer worldwide and 1.7 million
cases of cataracts. 88/

162. The Special Rapporteur has deliberately, without arranging them

in any order, presented observations concerning the deterioration of the
environment and figures concerning the standard of living, death rate, health,
participation, etc. in order to stress the close interaction between the
assaults made on the environment and the enjoyment of human rights, which
she has already had occasion to mention in the introduction to her earlier
reports. The analysis which follows, while endeavouring to supplement the
data contained in the earlier reports, is based on examples which, though
illustrative, should not be regarded as exhaustive.

A. Right to self-determination and permanent

sovereignty over natural resources

163. Denial of the right of peoples to self-determination and to dispose of

their natural wealth and resources has been and remains one of the deep-seated
causes of underdevelopment and of the serious damage inflicted on the
environment in formerly colonized countries and countries still under
occupation.

164. The denial of the right of peoples to self-determination and practices in

the occupied territories, characterized by massive and systematic violations
of human rights, lie at the origin of the degradation suffered by the
environment in those territories and of the damage done to the cultural
heritage and living conditions of the population, who are reduced to living
in camps, precarious housing and areas bereft of basic sanitation.

165. Population transfer, including the implantation of settlers and

settlements, directly violates the cardinal principle of the right of peoples
to self-determination and at the same time generates further violations of
the principles of international law and human rights. The implantation of
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settlers and settlements, particularly in countries under foreign domination

and in occupied territories, is generally part of a deliberate policy with
the aim of changing the demographic structure and the political, cultural,
religious and other characteristics of the countries and peoples in question,
with the intent to destroy, in whole or in part, a national, ethnic, racial,
religious or linguistic group as such, to ensure the domination of one group
over another, or to distort the results of a planned self-determination
referendum. In all cases, these are illegal practices which run counter to
fundamental principles of international law. In some situations, these
practices may be regarded as amounting to genocide. 89/

166. The right to development implies, as the Declaration on the Right to

Development makes clear, the full realization of the right of peoples to
self-determination and to full sovereignty over all their natural wealth
and resources. The pillage of a country’s natural resources favoured by
relations of political, economic or other subjection or dependence leads to
uncoordinated and extroverted development which, besides keeping the country
in a state of chronic underdevelopment, worsens the adverse consequences which
that type of development produces on the environment (intensive exploitation
of raw materials and products that upsets the ecological balance; wastage of
non-renewable energy resources; establishment of polluting and high-risk
industries; pauperization of rural areas, etc.).

167. The United Nations General Assembly for its part has regularly reiterated
the principle set out in resolution 1803 (XVII) of 14 December 1962 whereby
"The right of peoples and nations to permanent sovereignty over their natural
wealth and resources must be exercised in the interest of their national
development and of the well-being of the people of the State concerned."
General Assembly resolution 48/46 of 10 December 1993 is worth noting here in
connection with the activities of foreign economic and other interests which
impede the implementation of the Declaration on the Granting of Independence
to Colonial Countries and Peoples in Territories under colonial domination,
in which the General Assembly reaffirms "the solemn obligation of the
administering Powers under the Charter of the United Nations to promote the
political, economic, social and educational advancement of the inhabitants of
the Territories under their administration and to protect the human and
natural resources of those Territories against abuses" and emphasizes that
"the natural resources are the heritage of the indigenous populations of
the colonial and Non-Self-Governing Territories". At the same time, the
General Assembly expresses its concern about "the activities of those foreign,
economic, financial and other interests that exploit" the resources of those
Territories. In resolution 48/47 of 10 December 1993, the General Assembly
"Urges the specialized agencies and other organizations of the United Nations
system to formulate programmes that will support the sustainable development
of small island Non-Self-Governing Territories and adopt measures that will
enable those Territories to cope effectively, creatively and sustainably with
environmental changes and to mitigate impacts and reduce the threats posed to
marine and coastal resources."

168. It may also be noted that Principle 23 of the Declaration of Rio states
that "The environment and natural resources of people under oppression,
domination and occupation shall be protected."
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169. On the question of the occupied Arab territories, the Commission on Human
Rights inter alia adopted resolution 1994/1 on 18 February 1994, in which it
welcomed "the positive development which originated with the International
Peace Conference on the Middle East, convened at Madrid on 30 October 1991,
including in particular the Declaration of Principles on Interim
Self-Government Arrangements signed by the Government of Israel and the
Palestine Liberation Organization on 13 September 1993, as well as all
the efforts for the creation of a peaceful and stable environment in the
Middle East", while declaring itself "Gravely concerned at the establishment
by the Israeli Government of settlers in the occupied territories, which may
change the physical character and demographic composition of the occupied
territories." The Commission took note of the information submitted by its
Special Rapporteur referring to "confiscation of land by the Israeli
authorities before and after the signing of the Declaration of Principles
on 13 September 1993"; it "Urges the Government of Israel to abstain from
installing any settlers in the occupied territories."

170. The Special Rapporteur welcomes the results of the first free and
democratic elections in South Africa, which led, on 10 May 1994, to the
establishment of a united, democratic and non-racial Government. She hopes
that effective and decisive measures will be taken to eliminate the effects of
the policy of apartheid. She welcomes the fact that the new South African
Constitution contains a number of provisions concerning the fundamental rights
of the individual and stipulates, in article 29, that "every person shall have
the right to an environment which is not detrimental to his or her health or
well-being".

171. The Special Rapporteur notes with satisfaction that in

President Nelson Mandela’s inaugural address to Parliament on 24 May 1994,
specific mention was made of the measures to be taken to protect the
environment and ensure the participation of society in the decision-making
process. In particular, President Mandela said:

"My Government is committed [...] to bring into the decision-making

processes organs of civil society [...] The Government will take steps
to ensure the provision of clean water on the basis of the principle of
water security for all and the introduction of proper sanitation
sensitive to the protection of the environment. We are determined
to address the dire housing shortage [...] Health also remains a
fundamental block of humane society [...] We must combat such social
pathologies as widespread poverty [...] I am especially pleased that we
have a ministry dedicated to the issue of environment. Its work must
impact on many aspects of national activity and address the question
of well-being of society as a whole and the preservation of a healthy
environmental future even for generations not yet born."

B. Right to life

172. The right to life is unanimously considered to be a fundamental right

of a suprapositive character in that it is a norm erga omnes enforceable
in respect of all persons, even where there is no treaty obligation. The
right to life is included among the peremptory norms (jus cogens) from which
"no derogation is permitted". 90/ It is therefore part of the list of the
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fundamental rights of the individual from which, under the International

Covenant on Civil and Political Rights of 1966 (art. 4), the European
Convention on Human Rights of 1950 and the American Convention on Human Rights
(Pact of San José of 1969), no derogation is permitted.

173. The Human Rights Committee considered in its General Comment 6 that the
right to life is "the supreme right from which no derogation is permitted even
in time of public emergency which threatens the life of the nation ... It is
a right which should not be interpreted narrowly ... the protection of this
right requires that States adopt positive measures," such as "measures to
reduce infant mortality and to increase life expectancy ... to eliminate
malnutrition and epidemics." 91/

174. According to Professor Galicki, "The right to life is the most important
among all human rights legally guaranteed and protected by contemporary
international law. On the other hand, the right to life is the one which is,
most of all, connected to and dependent on proper protection of the human
environment. It is because this right, like no other, may be directly and
dangerously threatened by detrimental environmental measures. The right
to life and the quality of life depend directly on positive or negative
environmental conditions. Simultaneously, we cannot forget that this is
an original right from which all other human rights derive." 92/

175. As has been noted throughout the foregoing discussion, most assaults on
the environment lead to a deterioration in living conditions and constitute
risks for survival if not actually accompanied by deaths directly or
indirectly caused by these assaults. In the words of Mr. R.G. Ramcharan:

"Threats to the environment or serious environmental hazards may threaten

the lives of large groups of people directly; the connection between the
right to life and the environment is an obvious one ... . A discussion
of the interrelationship between the two rights should, however, go
beyond this ... [and] may be summarized in the following proposition:
1. There is a strict duty upon States, as well as upon the international
community as a whole, to take effective measures to prevent and safeguard
against the occurrence of environmental hazards which threaten the lives
of human beings. 2. Every State, as well as the United Nations (UNEP),
should establish and operate adequate monitoring and early-warning
systems to detect hazards or threats before they actually occur.
3. States which obtain information about the possible emergence of an
environmental hazard to life in another State should inform the State at
risk or at least alert UNEP on an urgent basis. 4. The right to life, as
an imperative norm, takes priority above economic considerations and
should, in all circumstances, be accorded priority. 5. States and other
responsible entities (corporations or individuals) may be criminally or
civilly responsible under international law for causing serious
environmental hazards posing grave risks to life. This responsibility is
a strict one, and should arise irrespective of whether the act or
omission in question is deliberate, reckless or negligent. 6. Adequate
avenues of recourse should be provided to individuals and groups at
national, regional or international levels, to seek protection against
serious environmental hazards to life. The establishment of such avenues
of recourse is essential for dealing with such risks before they actually
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materialize." 93/ As emphasized by A.A. Cançado Trindade, the rights

to life and health are "at the basis of the ratio legis of international
human rights law and environment law". 94/

C. Right to health

176. As recognized in the Universal Declaration of Human Rights, the

International Covenant on Economic, Social and Cultural Rights, other human
rights instruments and most national constitutions, everyone has a right to
the highest attainable standard of health. In the environmental context, the
right to health essentially implies feasible protection from natural hazards
and freedom from pollution, including the right to adequate sanitation. This
right is directly linked to the right to water and food, to safe and healthy
working conditions, and to housing.

177. Numerous communications were received pointing to the direct link between
adverse environmental conditions and violations of the right to health, and
exemplifying the irreversible impacts on health of large-scale industrial
accidents as well as the deleterious effects of other less spectacular sources
of pollution, such as the continuous discharge of toxic and hazardous
substances into air, soil and water. Contaminating substances frequently
enter the food chain and lead to respiratory and skin diseases, among others.

178. Natural disasters and climate change conditions are also an increasing
reason for widespread health concerns, particularly as a result of massive
floods, which, linked to major sanitation problems and unsafe water, result in
the rapid spread of contagious diseases. Also to be noted are the
catastrophic effects of desertification and drought, particularly in Africa,
as they result directly in lack of food and water. Drought and
desertification cause massive displacement of peoples, social insecurity and
widespread living conditions at a level not commensurate with human dignity.
The Special Rapporteur wishes to emphasize the importance of ensuring the
availability of safe water in quantities adequate to maintain or improve human
health and life.

179. Environmental problems negatively affect human health in both the

industrialized and the developing world, but those relatively poorer and
disadvantaged minorities are most greatly harmed by adverse environmental
conditions. This situation is particularly exacerbated by lack of information
about the environment of local populations, insufficient infrastructure,
inadequate social security systems or inadequate access to such services.

180. The link between the environment and human health has repeatedly found
reflection in the international and domestic instruments, either explicitly or
under a more general expression of a right to adequate conditions of
life. 95/ When asserting the right to the environment, current provisions
express it in terms of the right to a healthy environment. This qualification
of the environment has been generally interpreted to mean that the environment
must be healthy in itself - free from "diseases" that hinder its ecological
balance and sustainability - and that it must be healthful, that is conducive
to healthy living.
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181. The International Covenant on Economic, Social and Cultural Rights

recognizes that to achieve the full realization of the right to health it is
necessary to ensure the improvement of all aspects of environmental and
industrial hygiene. As noted by the Special Rapporteur in her 1992 progress
report, the implementation of the right to health contained in
the 1961 European Social Charter has led the Committee of Independent Experts
to take into account measures to prevent, limit or control pollution. 96/

182. Indigenous peoples have alleged in international forums violations of

their right to health as a result of environmental destruction. 97/ In one
key case, the Inter-American Commission on Human Rights found that the right
to health and well-being of indigenous peoples had been violated as a result
of the negative environmental effects and dissemination of disease that
followed from road construction in the rainforest. 98/

183. International environmental law instruments have frequently referred to

the negative effects on health of environmental pollution. Many of these
instruments define pollution as the introduction by man of substances or
energy into the environment resulting in such deleterious effects as hazards
to human health or which harm/endanger human health. 99/

184. The right to health can be constructively viewed from an environmental

perspective in the light of the principles of sustainable development. Under
these principles, another facet of the right to health reaches full meaning:
as stated by the World Health Organization (WHO), "human health is essential
for sustainable development since without health, human beings would not be
able to engage in development, combat poverty and care for their environment".
Thus, there is clear interdependence between health and environmental
protection. As WHO points out, "... health status is nearly always the best
as well as first indicator of environmental degradation". 100/

185. Although it was already present in the Stockholm Declaration - and

particularly well addressed as a sustainable development issue in the report
of the United Nations Conference on Environment and Development - it is
important to note the significance of health being part of the first principle
of the 1992 Rio Declaration and the multiple references to the protection and
promotion of health in Agenda 21, particularly in chapter 6, which deals
exclusively with human health.

186. The Special Rapporteur welcomes the increased action taken by Governments
and United Nations agencies such as FAO, UNEP and WHO, in preparation for and
as a result of UNCED, to address environmental problems and their impact on
human health. In particular, she notes the significant amount of
documentation provided by WHO and appreciates representatives from this
organization meeting with her in a special session to discuss a wide variety
of matters regarding the relationship between environmental issues and the
right to health. The Special Rapporteur would like to acknowledge some recent
initiatives of WHO, such as the report of its Commission on Health and the
Environment, Our Planet, Our Health, 101/ the comprehensive background
paper for the Commission on Sustainable Development (CSD) by the Task Manager
on Health, the development of programmes on cities and the environment and on
health support systems, and the "Global Strategy for Health and the
Environment". She also commends the Political Statement and Action Programme
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of the March 1994 Ministerial Conference on Drinking Water and Environmental

Sanitation, particularly part 2 on "Water, Health and the
Environment". 102/

187. As emphasized at this Conference and by CSD and WHO, significant

financial resources need to be allocated to ensure adequate protection of
health from negative environmental conditions. Indeed, funding of health
protection and promotion must be applied in a framework of international and
national equity and solidarity, taking into consideration at all times the
fact that the right to health echoes fundamental human needs. 103/
Obviously, there is also a need to ensure that structural adjustment
programmes do not cut allocations for health care, education and environmental
protection.

D. Right to food

188. International articulations of the right to an adequate standard of

living - including those set forth in the Universal Declaration of Human
Rights and the International Covenant on Economic, Social and Cultural
Rights - recognize the right to food as an essential component of the right to
health. Food security is inextricably linked to an environment free from
degradation and it depends on environmentally sound and socially sustainable
development. 104/

189. The Special Rapporteur notes with concern the point raised at UNCED and
generally recognized that massive numbers of people suffer from lack of food
while the world as a whole produces sufficient food to feed everyone.
Principle 31 of the Vienna Declaration and Programme of Action of the World
Conference on Human Rights also proclaims that food shall not be used as a
tool for political pressure.

190. Special attention should be devoted to eliminating the use of food as a

weapon, whether in times of armed conflict or as a more general tool of
oppression. In either case, interference with access to, production of and
distribution of food often leads to severe environmental stresses and forces
people to sacrifice long-term environmental sustainability in order to meet
short-term subsistence needs.

191. The right to food is evidently linked to the issues of extreme poverty
and underdevelopment (see chap. 2).

E. Right to safe and healthy working conditions

192. The environmental dimension of the right to work needs to be understood

in the light of the right to health and in the general context of the right to
an adequate standard of living with due regard to the right to safe and
healthy working conditions.

193. Realization of this right requires a working environment free from

pollution and other hazards, where workers’ health is not threatened by
circumstances such as exposure to asbestos, contact with pesticides and
fungicides, or inhalation of toxic substances. Fulfilment of this right in
turn requires the right to know and to have access to relevant information on
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environmental and health risks, the right of expression and association to

facilitate collective action, and the recognition of the workers’ right to
refuse to pollute at the workplace.

194. Numerous conventions concluded under the auspices of the International

Labour Organisation (ILO) address many different environmental aspects of
occupational health and safety. 105/ Vulnerable groups such as children,
indigenous peoples, migrant workers and women suffer disproportionately from
violations of the right to safe and healthy working conditions. This
underlines the necessity of ratifying the international instruments and
improving ways and means by which provisions of these instruments can be fully
implemented.

F. Right to housing

195. The fundamental right to adequate housing has both a firm basis in
international human rights law and a significant environmental dimension. As
noted by Mr. Rajindar Sachar, Special Rapporteur on the right to adequate
housing, housing rights involve survival, health and environmental conditions
in a holistic and interdependent framework and one which transcends the
outdated "four walls and a roof" view of housing. 106/

196. Agenda 21 parallels Mr. Sachar’s holistic view of housing rights and sets
an objective of achieving adequate shelter, especially for the poor, through
an enabling approach to shelter development and improvement that is
environmentally sound.

197. The right to adequate housing is enshrined as a basic human right in

article 25 (1) of the Universal Declaration of Human Rights, and
article 11 (1) of the International Covenant on Economic, Social and Cultural
Rights. Both instruments describe the right to housing as an essential
component of the right to an adequate standard of living. The right to
housing also appears in many other international, regional and national legal
instruments. 107/

198. The Committee on Economic, Social and Cultural Rights, in its General
Comment No. 4 (1991) on the right to housing, explains that the right to
housing means, among other things, housing not built on polluted sites or in
close proximity to pollution sources that threaten the right to health of
inhabitants. 108/ The Committee requires that States parties to the
International Convention on Economic, Social and Cultural Rights include in
their reports to the Committee information on measures concerning
environmental planning and health in housing and human settlements. 109/

199. The right to adequate housing also includes the obligation to avoid
forced evictions, a practice that constitutes a gross violation of human
rights. 110/ Of particular concern is the fact that States often fail to
comply with their obligation not to carry out or advocate forced or arbitrary
evictions of persons or groups. Forced evictions should take place only when
conservation and rehabilitation are not feasible and suitable relocation
measures are undertaken. Where forced evictions cannot be avoided, the
affected persons have a right to just compensation.
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200. In addressing forced evictions, we should not forget the importance of

the right to property which includes the right not to be deprived of land,
water resources and other aspects of one’s habitat, and it thus precludes
deforestation and other environmentally destructive acts. 111/

201. In carrying out structural adjustment programmes and other activities,

the international financial institutions, development agencies and Governments
should pay particular attention to the possible adverse effects of those
programmes and specifically to the issue of displacing people from their
homes. The pressure on financially strapped Governments to divert their
limited financial resources from dealing with housing, environmental and other
problems to making their payments to funding agencies only exacerbates the
problem. The institutions concerned must take into account the environmental
and housing rights consequences of their activities throughout the project
process, from planning to implementation and monitoring. 112/

202. The realization of the environmental dimension of the right to adequate

housing requires concurrent attention to the rights to health and food, and to
the eradication of poverty.

G. Right to information

203. The Special Rapporteur considers the right to information highly relevant
to human rights and the environment. Public access to information on request
and the obligation of public authorities to disclose it irrespective of
requests are essential for the protection of the environment and the
prevention of environmental human rights problems.

204. In the Special Rapporteur’s view, the right to information relating to

the environment requires that information be relevant and comprehensible; that
it be provided in a timely manner; that the procedures to obtain information,
if established, be simple and brief; that the cost to individuals and groups
be reasonable; and that it be available across State boundaries. The Special
Rapporteur also considers that the right to information includes the right to
be informed, even without a specific request, of any matter having a negative
or potentially negative impact on the environment. It is clear to the Special
Rapporteur that the right to information imposes a duty on Governments. It is
also clear to the Special Rapporteur that the right to information imposes a
duty on Governments to collect and disseminate information and to provide due
notice of significant environmental hazards.

205. The main human rights instruments prominently feature the right to
information. This right appears in article 19 of the Universal Declaration of
Human Rights and article 19 of the International Covenant on Civil and
Political Rights. 113/ Article 1 of the draft Declaration on Freedom of
Information 114/ provides that "the right to know and the right freely to
seek the truth are inalienable and fundamental rights of man". Article 2 of
the Declaration sets out governmental duties relating to the free flow of
information. Article 4 provides that those who disseminate information have a
duty of good faith to report accurately on the facts. Other provisions of
international instruments stress that information must be accurate and
relevant. 115/
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206. United Nations bodies and specialized agencies frequently have emphasized
the importance of information in the area of environment. The Declaration of
the United Nations Conference on the Human Environment contains reference to
the right to information in Principle 19. The 1972 United Nations
Educational, Scientific and Cultural Organization Convention for the
Protection of the World Cultural and Natural Heritage 116/ requires States
to provide the public with information on dangers to the environment. The
World Charter for Nature 117/ also contains provisions relating to
information, including paragraph 21 (a). Principle 10 of the 1992 Rio
Declaration on Environment and Development indicates the duty of States to
make information "widely available".

207. Several regional organizations have also emphasized the need for
information regarding the environment. The League of Arab States proclaimed
the Arab Declaration on Environment and Development and Future
Perspectives 118/ in which the League stresses the right of persons and
groups to relevant information, including technical data. In the European
Union several directives and recommendations stress the right to information.
The EC Directive on Freedom of Access to Information on the
Environment 119/ covers the issue most comprehensively. 120/ Regional
environmental treaties also emphasize the right to information, including the
affirmative duty to disclose or provide information. For example, the Nordic
Convention on the Protection of the Environment 121/ requires the States
parties to publish relevant information in the newspapers or other forms of
public media; the ASEAN Agreement on the Conservation of Nature and Natural
Resources 122/ requires the States parties to disclose and disseminate
relevant information. Certain international treaties, such as the Antarctic
Protocol on Environmental Protection, 123/ require States to provide
environmental information upon request. Other international treaties impose a
duty to warn other States of environmental dangers. 124/

208. Within the United Nations system, reporting requirements and increased
dissemination of environmental issues can enhance the right to information.
Within the United Nations Environment Programme, for instance, performance
reports are requested of Governments and organizations. These reports are
available to the public. Other branches of the United Nations system are
carrying out initiatives to provide relevant and timely information and
education regarding the environment. For example, the Department of Public
Information has released Status of World Environment in Mexico, Italy and
Japan in the local languages, thereby greatly enhancing international
dissemination of this important work. 125/ The General Assembly, in its
11 December 1990 resolution 45/76 entitled "Questions relating to
information", directed the Department of Public Information to pay particular
attention to both human rights and the environment in its information
activities.

209. The right to information is frequently presented as an individual and

group right which constitutes an essential attribute of the democratic
processes and the principle of popular participation. Indeed, the concept of
democratic government as stated in article 21 of the Universal Declaration of
Human Rights becomes meaningless unless individuals and groups have access to
relevant information on which to base the exercise of the vote or otherwise
express the will of the people.
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210. Violations of the right to information in the environmental context arise

in various ways. The Special Rapporteur cannot discuss all the situations
brought to her attention, but wishes to present a few examples by way of
illustration. First, violations occur when development projects or other
activities with great potential impact on the environment and people’s rights
involve a Government, government contractors, and perhaps international
funding sources. Relevant information may be in many locations and with many
entities, making access by the public difficult. International funding
sources or transnational corporations may not allow private access to
information under their control.

211. Violations can also occur when Governments invoke national security or
other reasons as justification for withholding of information from the public.
Violations may be compounded where it is not possible to obtain judicial
review of the Government’s non-disclosure. The Special Rapporteur has
received reports of serious human rights violations suffered by people as a
result of efforts to obtain information about environmental situations.
Problems affecting the realization of the right to information can also arise
when Governments appear to cooperate but instead provide limited information,
or provide it either piece by piece or in vast, unmanageable quantities with
no apparent order or relevancy. Individuals or groups seeking to monitor
activities having an impact on the environment or to assess environmental harm
already done may not be able to use the information in a timely, effective
manner.

212. Problems also occur when people or groups are prevented from
disseminating information regarding ecological problems by a court. For
example, the use of the sub judice rule has been effective in many areas in
suppressing vital environmental information. Under the sub judice rule once a
legal action has been filed, it may not be commented on or reported on in the
public media at the risk of being cited for contempt of court.

213. The Special Rapporteur is aware that national security, "trade secrets",
sub judice or other defences against reasonable requests for information will
surely continue to arise. However, the Special Rapporteur must stress that
Governments may only use national security defences in conformity with the
relevant derogation or limitation clauses of international human rights
instruments. "Trade secrets", sub judice and other defences must be
reviewable to ensure that the public’s right to information is not unduly
restricted.

214. Even if a plausible national security defence could be presented, the

Special Rapporteur considers that there are circumstances where it is not
acceptable. For example, individuals, communities and neighbouring countries
must have information regarding specific hazardous materials and conditions at
industrial facilities located in their vicinity in order to undertake disaster
planning and response wherever there is a danger of large-scale industrial
accidents like Chernobyl and Bhopal. Individuals, communities and
neighbouring countries must have information regarding the full range of
environmental consequences of proposed development projects in their regions
in order to participate meaningfully in decisions that could adversely affect
them due to increased pollution, loss of land base, dislocation and other
impacts. Individuals, communities and neighbouring countries must have
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information regarding pollutants and wastes associated with industrial and

agricultural processes. In these circumstances there is a clear duty to
disclose.

215. The right to information not only protects individuals and groups, but
also Governments themselves. In this light, the Special Rapporteur is aware
that in the context of human rights and the environment, the right to
information may also be considered a right of States vis-à-vis other States or
of States vis-à-vis transnational corporations. In this context a State’s
access to information would enable it to transmit the information to its
residents and to otherwise protect the human rights of those residents. The
Special Rapporteur stresses that the right of States aspect of the right to
information is particularly important regarding the issue of toxic waste
disposal, the use of nuclear power and disposal of nuclear wastes, and the
production or use of toxics because of the human hazards these matters pose.

216. The Special Rapporteur has reviewed information showing that many
conflicts have arisen between Governments because Governments of developed
countries, transnational enterprises operating from the developed countries or
international development banks do not provide full disclosure of potential
dangers to human beings or to the environment for contemplated activities.
Under these circumstances, individuals and groups have limited recourses
because their own Governments may not have the relevant information.

H. Popular participation

217. The right of popular participation in its various forms ranks high in
importance for promoting and protecting human rights and the environment. The
basic right to popular participation is provided for in article 21 of the
Universal Declaration of Human Rights and a number of international
instruments. The United Nations system has long recognized the importance of
popular participation in the protection of the environment, especially evident
in the 1972 Stockholm Declaration, the 1975 United Nations work on popular
participation in development 126/, the 1992 Rio Declaration and Agenda 21,
and 1993 Vienna Declaration and Programme of Action.

218. The Special Rapporteur stresses that popular participation is closely

related to the rights to education and information: without education about
the environment and without access to relevant information on issues of
concern, popular participation is meaningless.

219. in the United Nations the issue of popular participation became prominent
in the context of the right to development 127/. After the International
Seminar on Popular Participation (Ljubljana, 1982), the issue of popular
participation has become an essential feature of a wide range of human rights
concerns. The General Assembly asked the Commission on Human Rights to
address popular participation in a broader context 128/, reflected in the
Commission’s work. 129/ Popular participation is a prominent feature of
the World Charter for Nature and the Rio Declaration on Environment and
Development (see supra, chap. II, sect. C).

220. It is important that participation in the environmental context be

meaningful - a question of quality of the participation and whether it is
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timely. Environmental destruction is not easily undone. People must be able

to prevent environmental harm. As a minimum, people have the right to receive
notice of and to participate in any significant decision-making regarding the
environment, especially during the process of environmental impact assessments
and before potential damage is done. Participation must include the right to
oral and written commentary. People must also be able to participate in
follow-up projects and in ongoing monitoring of environmental situations. To
prevent damage or to provide relief if damage has already been done, people
must also have the right to seek effective remedy in courts, tribunals or
other forums for violations, including violations arising from a failure to
allow effective participation.

221. Although many people are prevented from participating in decisions, there
is a growing national and international trend, including at the international
funding institutions, to allow the participation of individuals and groups in
all stages of activities involving the environment. The environmental impact
assessment process has been effective in providing for meaningful public
participation. The United Nations Environment Programme has prepared a set of
goals and principles on environmental impact assessment with a heavy emphasis
on public participation. 130/

222. The Special Rapporteur has been presented with a variety of means by
which participation in environmental decision-making is unduly restricted. A
denial of standing in the process of environmental impact assessments and in
judicial action has been a particularly effective means to prevent meaningful
public participation in environmental concerns, first, because it denies the
ability to prevent harm and second because it denies the possibility of
reparations, compensation or other remedies. Groups or individuals may be
denied standing because they are not considered to be sufficiently affected or
injured by actual or proposed activities. Persons and groups from one country
may not have standing in another country where the environmental problem
arises that affects them. International forums have interpreted standing
broadly. For example, in cases with environmental concerns, the
Inter-American Commission on Human Rights has allowed "interest group" or
"interested citizen" actions; the Council of Europe has required actual
victims or relatives of actual victims, although the victim may be a group or
non-governmental organization. The United Nations Human Rights Committee
allows collective communications but has implied that each of the individuals
of the group must be able to allege essentially the same injury. 131/ In
the view of the Special Rapporteur, standing must always be broadly granted to
foster public participation and to better protect all human rights in an
environmental context.

223. The question of popular participation and the environment has special
relevance in conditions of extreme poverty. The extremely poor suffer most
from environmental hazard, yet they are rarely included in decision-making
processes, monitoring or follow-up. They usually have no means to carry out
judicial actions. States and the international community should ensure that
all affected persons, regardless of their economic status, are included in
decision-making and related activities and that they have the means to take
legal recourses.
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I. Freedom of association

224. The right to freedom of association forms a crucial element of effective

popular participation in matters that relate to the environment and in
general. Article 20 of the Universal Declaration of Human Rights and
article 21 of the International Covenant on Civil and Political Rights
establish freedom of association and assembly as fundamental human rights. In
the environmental context these rights encompass the freedom to associate
freely and peacefully with others to protect the environment, to protect the
rights of others affected by environmental harm, and to take collective action
in support of environmental causes.

225. As noted in chapter 29 of Agenda 21, freedom of association has

particular relevance in the case of workers. The right to organize plays a
critical role in workers’ ability to protect and enforce their right to
environmental health and safety on the job. Outside of the trade union
context, the right to association, in conjunction with the right to freedom of
expression, is possible for groups of individuals, such as non-governmental
organizations, to mobilize the human and financial resources necessary to
effectively address environmental problems (see chap. 27 of Agenda 21).

J. Cultural rights

226. The relationship between the deterioration of the environment and the
enjoyment of cultural rights has several dimensions, indissolubly linked to
the fundamental rights to education, information, freedom of expression,
assembly and association, and the right to take part in public life and in
decision-making. Cultural rights may equally well be considered from the
standpoint of the right to leisure, provided for in a number of international
human rights instruments, which leads to the right to the conservation of
unique sites constituting the universal heritage.

227. Nearly 20 years ago, the Director-General of UNESCO made the

following reflection on the relationship between culture and man’s
environment: 132/

"... The deterioration of the natural environment and, even more, the
alienation from this environment of an increasingly large number of
people in the industrialized countries are direct and potentially very
serious blows to culture itself. What idea can man form of purity unless
he initially receives a spontaneous impression of purity from the air he
breathes, the river where he bathes, the sky on which he gazes or from
all that goes to make up his life at its most instinctive? What secrets
can he hear murmured within him if silence without is denied to him? How
can he meditate amid tumult? How can he find himself in a continual flux
of movement without pattern? And to what discoveries can he direct his
steps outside himself, what marvels can he look for in a world where so
many animal species are vanishing, where plant life is retreating further
and further from our dwellings, and where man is increasingly confronted
with the products and the signs of his oppressive presence?"

228. The importance of protecting cultural property and the specific role of
UNESCO in this sphere may be recalled at this point. The Constitution of
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UNESCO states that "since wars begin in the minds of men, it is in the minds
of men that the defences of peace must be constructed" and that peace must be
founded upon the intellectual and moral solidarity of mankind.

229. On 14 November 1970, the General Conference of UNESCO at its

sixteenth session adopted the "Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of Cultural
Property." According to this Convention, the term "cultural property" means
"property, which on religious or secular grounds, is specifically designated
by each State as being of importance for archaeology, prehistory, history,
literature, art or science". Article 1 of this instrument lists the
categories of cultural property protected.

230. On 16 November 1972, another convention saw the light of day under the
auspices of UNESCO; it relates to the "protection of the world cultural and
natural heritage". It came into force on 17 December 1975; it codifies
UNESCO’s practice in this area and describes methods of cooperation for
safeguarding the natural heritage which is increasingly threatened by the
deterioration of the environment.

231. The Convention covers the cultural and natural heritage of outstanding
universal value from the point of view of history, art, science or aesthetics.
It establishes two fundamental principles: each State party undertakes to
ensure the conservation of the world heritage situated on its territory; and
States parties recognize that the international community must cooperate to
protect and conserve this heritage. For this purpose, each State party is
required to draw up an inventory of property forming part of the cultural and
natural heritage situated on its territory and suitable for protection. A
World Heritage Committee, set up under the Convention, is responsible for
designating the property which is part of the world heritage and
disseminating, when circumstances demand, a "List of World Heritage in
Danger", so as to protect that property against disappearance, deterioration,
destruction, abandonment, natural catastrophes or the outbreak or threat of an
armed conflict (art. 11).

232. According to the Convention, "deterioration or disappearance of any item

of the cultural or natural heritage constitutes a harmful impoverishment of
the heritage of all the nations of the world". The States parties, out of
respect for the sovereignty of the States in whose territory the cultural and
natural heritage is situated, recognize that it constitutes a universal
heritage, and undertake to protect, conserve and preserve it and not to take
any deliberate measures which might damage this heritage directly or
indirectly (see art. 6).

233. The right to culture and the other related rights recognized in a number
of international instruments entail the right of everyone "freely to
participate in the cultural life of the community, to enjoy the arts and to
share in scientific advancement and benefits" (Universal Declaration of Human
Rights, art. 27), and "the right and the duty" of every people "to develop
its culture," since each culture has "a dignity and value which must be
respected and preserved" (Declaration of the Principles of International
Cultural Cooperation, art. 1). 133/
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234. In this context, development models which are extroverted or exclusively

growth-oriented, carry the risk of acculturation, or even endangering cultures
closely linked to a form of existence of national, ethnic, religious or
linguistic minorities or of indigenous peoples. While the Special Rapporteur
is aware of the fact that traditional practices which run counter to progress
and affect human rights should be eradicated, she also considers that
sustainable development only has a real sense in so far as it takes account of
the aspirations of the individuals, groups and peoples concerned, and
preserves their cultural identity and their means of existence.
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CHAPTER VI. CONCLUSIONS AND RECOMMENDATIONS

A. Conclusions

235. The problems of the environment are no longer being viewed exclusively
from the angle of the pollution affecting the industrialized countries but
seen rather as a worldwide hazard threatening the planet and the whole of
mankind, as well as future generations. There is now a universal awareness of
the widespread, serious and complex character of environmental problems, which
call for adequate action at the national, regional and international levels.

236. The realization of the global character of environmental problems is

attested to by the progress made in understanding the phenomena that create
hazards for the planet, threaten the living conditions of human beings and
impair their fundamental rights. These phenomena concern not only the natural
environment (the pollution of water, air and atmosphere, seas, oceans and
rivers; depletion of the ozone layer; climatic changes) and natural resources
(desertification, deforestation, soil erosion, disappearance of certain animal
species; deterioration of flora and fauna; exhaustion of non-renewable
resources, etc.) but also populations and human settlements (housing, town
planning, demography, etc.) and the rights of human beings (the human
environment, living, working and health conditions; conditions for the
exercise and enjoyment of fundamental rights).

237. By means of a global approach to these phenomena that takes in their

multidimensional aspects, including their human aspects, it has become
possible to move from environmental law to environmental rights, proclaimed by
the 1972 Stockholm Declaration which states in its Principle 1 that "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 a solemn responsibility to protect and improve the environment for
present and future generations".

238. Since then, a large number of national, regional and international

instruments have been drawn up which have strengthened the legal bases of
environmental rights and stressed the intrinsic link that exists between the
preservation of the environment, development and the promotion of human
rights.

239. The Special Rapporteur has endeavoured, within the limits of the means at
her disposal, to collect the basic legal instruments underpinning
environmental rights and to clarify the relationship existing between the
preservation of the environment and human rights. She has received from
governments, the United Nations bodies concerned, specialized agencies and
intergovernmental and non-governmental organizations, studies, communications,
information and comments that have proved very useful for her report.

240. This research has revealed universal acceptance of the environmental

rights recognized at the national, regional and international levels.

241. At the national level, over 60 constitutions brought to the attention of

the Special Rapporteur contain specific provisions relating to the protection
of the environment; some of them recognize explicitly the right to a
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satisfactory environment, entailing corresponding duties towards the State and

its institutions and rights and/or obligations for individuals and organs of
society. An increasing number of national legislations have developed the
framework of laws and regulations needed to ensure the right to a satisfactory
environment and have spelt out the substantive content of that right and the
ways and means whereby it may be exercised, including remedies to safeguard
its effective enjoyment and afford guarantees for its implementation. A few
constitutions provide, in the section dealing with human rights and
fundamental freedoms, for the right to a healthy environment and the
guarantees attaching thereto, including in some cases the right of recourse
and petition. Some countries have provided for the punishment of offences
against the environment and have introduced into national legislation the
principle of compensation for the victims as well as reparation of the damage.
There is moreover a trend towards developing and strengthening the means of
preventing damage to the environment.

242. At the regional and universal level, recognition of the right to a

satisfactory environment as a human right is reflected both in the related
normative developments and in the "environmental" concern that informs the
activities of human rights bodies. Although only a few instruments of a
binding legal character have established a direct link between the environment
and human rights, the regional and international human rights bodies are
developing a practice whereby the procedural bases for enforcing the right to
a satisfactory environment are becoming more firmly established and the
validity of complaints of human rights violations based on ecological
considerations is being recognized. These bodies do not dismiss out of hand
the idea that ecological factors may hinder the enjoyment of the human rights
enshrined in the instruments in their care. On the other hand, those same
bodies and more particularly the European Court of Human Rights have, in
certain cases, legitimated restrictions on the use of private property in the
public interest based on concern for the need to preserve the environment.

243. This review of the activities of human rights bodies and other fields
relevant for the study has made it possible to outline the scope of
environmental rights. Many human rights are suited to being applied from an
ecological perspective, whether those rights are political, civil, social,
economic or cultural, and whether they are exercised individually or
collectively. The Special Rapporteur has drawn up a list of those rights,
albeit a non-exhaustive one and has attempted to assess the effects of the
environment or enjoyment of those rights.

244. Her analysis of the ways in which the right to a satisfactory environment
relates to other human rights gave the Special Rapporteur occasion to stress
the close link existing between that right and the right to development. The
fact is that the affirmation of "ecological rights" attaching to recognition
of the right to a satisfactory environment cannot be understood if we
disregard the problems bound up with development both nationally and
internationally. It also rests on the indivisibility and interdependence of
all human rights.

245. In this context, it is important to bear in mind the consensual aspects

which form the basis of the world partnership for sustainable development and
serve to reaffirm the principle of the right of peoples to self-determination,
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the duty to protect the environment and natural resources of peoples suffering
oppression, domination and occupation, and the sovereign right of States to
exploit their own resources in accordance with their environmental policy,
while ensuring that the activities conducted by them or under their
supervision do not damage the environment.

246. The world partnership establishes a responsibility which, while shared is

differentiated on the basis of the "polluter pays" principle, the special
responsibility of industrialized countries, and the problems and needs of
developing countries. It also calls for the channelling of new and additional
resources to the developing countries and the equitable settlement of those
countries’ foreign debt. The United Nations General Assembly has called for
innovative measures in this respect, such as the conversion of debt into
shareholdings and into ecological investment. It has also been generally
recognized that the examination of national and international strategies for
sustainable and ecologically sound development should not be used as a pretext
for imposing new conditions on the granting of funding or development aid or
to create unjustified trade barriers.

247. At the same time, the worldwide partnership creates solemnly acknowledged
obligations towards present and future generations which involve corresponding
rights for the recipients - individuals, groups and peoples. The State and
other parties to development, including the international agencies, have the
duty, among others, to refrain from activities damaging to the environment and
to take positive measures for preserving it. It is recognized in particular
that there is a need for studies of the impact of development projects on the
environment and on the fundamental rights of the populations concerned, who
are entitled to be duly informed of, and closely associated with, the
decision-making process, either directly or through their freely elected
representatives. Finally, it is acknowledged that vulnerable groups should be
protected from the negative consequences of the application of structural
adjustment programmes and of economic reforms undertaken by many countries.
The Special Rapporteur notes with interest the significant changes beginning
to occur within the international financing agencies, with a view to assuming
responsibility for these questions.

248. Environmental damage has direct effects on the enjoyment of a series of

human rights, such as the right to life, to health, to a satisfactory standard
of living, to sufficient food, to housing, to education, to work, to culture,
to non-discrimination, to dignity and the harmonious development of one’s
personality, to security of person and family, to development, to peace, etc.

249. In this context, it should be stressed how vulnerable certain peoples,

populations, groups or categories of persons are to ecological hazards and
natural disasters whether caused by man or generated by a state of war and
conflict. The Special Rapporteur has pointed out that the poor and
disadvantaged, minority groups, women, children, migrant workers and their
families, refugees and displaced persons are generally those most affected and
least protected. The transfer of toxic substances and waste to the developing
countries also gives cause for serious concern.

250. The Special Rapporteur noted indigenous peoples’ special ties with the
land and the environment, and their particular vulnerability to ecological
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hazards. She stresses the need for effective protection of their rights and
calls for the rapid adoption of the draft declaration finalized by the Working
Group on Indigenous Populations.

251. Conversely, human rights violations in their turn damage the environment.
This is true of the right of peoples to self-determination and their right to
dispose of their wealth and natural resources, the right to development, to
participation, to work and to information, the right of peaceful assembly,
freedom of association, freedom of expression, etc.

252. In the light of the foregoing, the Special Rapporteur is of the view that
effective implementation of the right to a satisfactory environment cannot be
dissociated from the twinned efforts to preserve the environment and ensure
the right to development. Nor can it be achieved without resolute action to
ensure the enjoyment of all human rights.

253. In order to give practical expression to the right to a satisfactory

environment, there is a need for development strategies that are directed
towards the implementation of a substantive part of that right (the right to
development, to life, to health, to work, etc.). These must go hand in hand
with the promotion of the related procedural aspects (due process, right of
association and of assembly, freedom of expression, right of recourse, etc.).

254. Implementation of the right to a satisfactory environment calls for

commitment and participation on the part of everyone at all levels, beginning
with the family unit, where environmental education starts. It depends on the
existence of effective national legal remedies; local administrative or other
courts, national institutions and ombudsmen provide guarantees of the
protection of this right. The Special Rapporteur notes with satisfaction the
development of such recourse guarantees in many countries.

255. The right to a satisfactory environment is also a right to prevention

which gives a new dimension to the right to information, education and
participation in decision-making. The right to restitution, indemnification,
compensation and rehabilitation for victims must also be seen from the angle
of the special responsibility that would follow from the absence of preventive
measures.

256. The right to a satisfactory environment is also a right to the

"conservation" of nature for the benefit of future generations. This
"futuristic" dimension restores to human rights their original purpose, as
embodied in the Charter of the United Nations and the Universal Declaration of
Human Rights of 1948. It foreshadows a "new public order" of human rights
which would set acceptable limitations on those rights in the general interest
while entailing corresponding duties on the part both of the public
authorities and of individuals, associations and other components of civil
society.

257. To conclude her study, the Special Rapporteur wishes to cite the argument
of Mr. A. Kiss that international law must be based on values, the fundamental
values of this century being human rights and the environment. She shares
this view and notes that these values are intrinsically bound up with
development seen as a worldwide phenomenon resting on various pillars such as
E/CN.4/Sub.2/1994/9
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peace, equity, progress, social justice and participatory democracy at all

levels, including the international level. As recalled by the
Secretary-General in May 1994 when he presented his agenda for development
which covers the five dimensions of peace, the economy, the environment,
social justice and democracy, "without peace, human energies cannot be
productively employed; without economic growth, there can be no sustained,
broad-based improvement in material well-being; without protection of the
environment, the basis of human survival will be eroded, without societal
justice, mounting inequalities will threaten social cohesion; without
political participation in freedom, development will remain fragile and
perpetually at risk".

B. Recommendations

258. The "human rights" component of the right to a satisfactory environment

lends itself, however, to immediate implementation by various bodies, under
existing mechanisms for following up regional and international human rights
instruments. The practice being developed within those bodies is decisive and
should bring into sharper focus the content of the right to a satisfactory
environment, the ways and means of implementing it, and the related procedural
aspects.

259. The Special Rapporteur recommends that the various human rights bodies
should examine, in the various fields of concern to them, the environmental
dimension of the human rights under their responsibility. She suggests in
particular that the following themes should be regularly examined by the
bodies, committees, working groups and special rapporteurs concerned:

(a) Commission on the Status of Women and Committee on the Elimination

of Discrimination against Women: rights of women and the environment, with
emphasis on factors giving rise to de facto discrimination and impeding
participation in the decision-making process;

(b) Committee on the Rights of the Child: vulnerability of children in

the face of ecological hazards; protection of children against environmental
degradation with particular reference to the phenomenon of street children;
education of children with a view to the preservation of the environment;

(c) Committee on the Elimination of Racial Discrimination - CERD:

racial discrimination and the environment and, more particularly, the tendency
for disadvantaged and marginalized groups to be more exposed to environmental
hazards. In addition, the Committee could establish appropriate case law for
the treatment of complaints addressed to it in conformity with the provisions
of the International Convention on the Elimination of All Forms of Racial
Discrimination;

(d) Committee on Economic, Social and Cultural Rights. The Committee

could frame general comments with a view to defining the interaction of the
environment with the human rights under its responsibility. It could moreover
examine, in the context of ongoing studies, the possibility of including
communications on ecological matters in any procedure established by means of
a protocol for the treatment of complaints by individuals or States;
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(e) Human Rights Committee. The Committee could expand its general
comment on the right to life in order to include environmental concerns or
formulate a general comment defining the links existing between civil and
political rights and the environment. Moreover, it should be able, through
dealing with complaints, to establish case law that will accommodate
environmental concerns;

(f) Working Group on the right to development: environment, debt

and development; development, environment and the funding institutions;
participation by the people in activities for development and the
environment, structural adjustment programmes, impact on the environment
and underprivileged populations and groups;

(g) Working Group entrusted with the preparation of a declaration on

the right and responsibility of individuals, groups and organs of society to
promote and protect universally recognized human rights and fundamental
freedoms. The group could contemplate the inclusion of specific provisions
relating to rights and duties in respect of the preservation of the
environment;

(h) The working groups, special rapporteurs on thematic questions and

country rapporteurs could also, within the areas covered by their mandates,
consider the impact of the environment on the enjoyment of human rights and
possible measures for correcting situations where rights violations have been
observed and help the victims to incorporate them into their rights,
particularly with regard to restitution, compensation or rehabilitation.

260. The interest shown in the impact of the environment on the enjoyment of
human rights means that human rights bodies are already in demand and are
increasingly being called on to pronounce on the question. In order to avoid
disparate practices and to promote the development of an overall, integrated
and coordinated view in the approach to the various phenomena which will be
dealt with in an inevitably sectoral way by existing bodies, given their
respective areas of competence, it is suggested that:

A coordination centre should be set up to deal with the question within

the United Nations Centre for Human Rights;

A special rapporteur of the Commission on Human Rights should be

appointed with a mandate similar to that generally given to special
rapporteurs on thematic questions;

A seminar should be held under the auspices of the Centre for Human
Rights to help formulate practical recommendations on the way in which
the right to a satisfactory environment could be rationally incorporated
into the activities of human rights bodies.

261. In submitting the draft declaration of principles on human rights and the
environment contained in the annex to this report to the Sub-Commission on
Prevention of Discrimination and Protection of Minorities and the Commission
on Human Rights, the Special Rapporteur expresses the hope that the draft will
help the United Nations to adopt, in the course of the present United Nations
E/CN.4/Sub.2/1994/9
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Decade of International Law, a set of norms consolidating the right to a

satisfactory environment - defined as an integral part of the world
partnership for peace, development and progress for all.

Notes

1/ "Immediately after the Stockholm Conference, perception of

environmental problems was limited to a specific geographical area, the
industrialized countries, and reduced to the simplest of terms, pollution".
Mohammed Sahnoun, "Environnement et développement", Revue algérienne des
relations internationales, No. 8, 1987, OPU, Algiers.

2/ As regards this notion of "sustainable development", see the work of

the World Commission on Environment and Development, General Assembly
resolution 42/186 dated 11 December 1987 and entitled "Environmental
Perspective to the Year 2000 and Beyond".

3/ See also the report prepared by the Secretary-General in accordance

with Commission on Human Rights resolution 1989/42 (E/CN.4/Sub.2/1989/3).

4/ See annexes to this report: II (Meetings with, and contributions of,

experts and non-governmental organizations) and III (Developments in national
legislation and practices, essentially composed on the basis of replies
received from Governments).

5/ "La protection de l’environnement", Annuaire français de droit

international, 1991, p. 1093.

6/ See Report of the United Nations Conference on the Human

Environment, Stockholm, 5-16 June 1972 (United Nations publication, Sales
No. E.73.II.A.14).

7/ General Assembly resolution 2997 (XXVII).

8/ General Assembly resolution 3281 (XXIX) of 12 December 1974.

9/ "By stating that economic, political and other relations must be

governed in particular by the principle of respect for human rights and
fundamental freedoms, this instrument asserts the need to work towards
establishing the essential conditions for protecting, preserving and improving
the environment". Andrzej Makarewiez, "La protection internationale du droit
à l’environnement", Environnement et droits de l’homme, edited by
Pascale Kromarek, UNESCO, 1987.

10/ See also General Assembly resolution 36/43, dated 19 November 1981,
in which the General Assembly endorses the Global Strategy for Health for All
by the Year 2000 adopted by the World Health Assembly on 22 May 1981, and
General Assembly resolution 37/137 of 17 December 1982 relating to the
publication and updating of a list of products harmful to health and the
environment.
 E/CN.4/Sub.2/1994/9
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11/ Brundtland Report, "Our Common Future", UNEP/GC.14/13.

12/ Report of the South Commission "The Challenge to the South", 1990,
Economica, p. 228.

13/ "World Development Report 1992", World Bank, Washington 1992,

p. 103.

14/ "Human Development Report 1993", Paris, Economica, data taken from
box 1.2, p. 12.

15/ Mohammed Sahnoun, op.cit.

16/ E/CN.4/Sub.2/1992/16, para. 118, p. 32.

17/ E/CN.4/Sub.2/1991/17, pp. 36-50, especially paras. 124-166.

18/ EURODAD, "Target 92", 1991, p. 16.

19/ "The realization of the right to development", Consultation, Geneva,

8-12 January 1990, HR/PUB/91/2, 1991, para. 166, p. 48.

20/ See E/CN.4/Sub.2/1992/7/Add.1 and E/CN.4/Sub.2/1993/7.

21/ A/CONF.151/PC/100/Add.1, para. 3.

22/ A/CONF.151/4(Part III), chap. 23, paras. 23.1 and 23.2.

23/ Ibid.

24/ A/CONF.157.23, Sect. I, para. 8.

25/ E/CN.4/Sub.2/1990/12, para. 33 and note 9; E/CN.4/Sub.2/1991/8,

paras. 23-30; E/CN.4/Sub.2/1992/7, paras. 19, 94-95, 99;
E/CN.4/Sub.2/1992/7/Add.1; E/CN.4/Sub.2/1993/7, paras. 29-32, 69, 89-90, 126.

26/ Cited in Mario Ibarra, "Traditional practices in respect of the

sustainable and environmentally sound self-development of indigenous people"
(E/CN.4/Sub.2/1992/31/Add.1), para. 94.

27/ J. Uranavi, Statement on behalf of the International Work Group for

Indigenous Affairs, 1985.

28/ E/CN.4/1989/22, annex III C, para. 3.

29/ Ibid, annex III A, pp. 27-28.

E/CN.4/Sub.2/1994/9
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30/ The realization of the right to development, Global Consultation on

the Right to Development as a Human Right, United Nations publication,
(HR/PUB/91/2).

31/ The subject of treaties, arguments and other constructive

arrangements between States and indigenous populations is now under review by
the Sub-Commission and its Special Rapporteur, Mr. Miguel Alfonso Martínez.

32/ International Labor Office Fact Sheet, International Labor

Standards, Washington Branch, January 1991.

33/ Hernán Santa Cruz, Racial Discrimination, United Nations

publication, Sales No. E.71.XIV.2, 1971.

34/ José Martínez Cobo, "Study of the problem of discrimination against

indigenous populations" (E/CN.4/Sub.2/1986/7 and Add. 1-4). Addendum 4
containing the conclusions and recommendations, issued as a United Nations
publication, Sales No. E.86.XIV.3.

35/ E/CN.4/Sub.2/1992/33, annex I.

36/ E/CN.4/Sub.2/1993/7, para. 89.

37/ E/CN.4/Sub.2/1992/31 and Add.1.

38/ E/CN.4/Sub.2/1992/7.

39/ Report of the Human Rights Committee (A/45/40), vol.II, annex IX A.

40/ Case 7615 of 5 March 1985, in the annual report of the Inter-
American Commission on Human Rights, 1984-1985 (OEA/Ser.L/V/II.66, doc. 10
rev.1), referred to by the Special Rapporteur in E/CN.4/Sub.2/1992/7, para. 94
and E/CN.4/Sub.2/1993/7, para. 69.

41/ Confederación de Nacionalidades Indígenas de la Amazonia

Ecuatoriana, petition filed 25 June 1990 and now subject of in situ
investigation by the Inter-American Commission, referred to by the Special
Rapporteur in E/CN.4/Sub.2/1992/7, para. 95 and E/CN.4/Sub.2/1993/7, para. 69.

42/ Organization of American States, Treaty Series 36.

43/ OEA/Ser.L/V/II.62/doc.10 rev. 3 of 29 November 1983 and

OEA/Ser.L/V/II.62/doc. 26 of 16 May 1994.

44/ Inter-American Commission, ibid., pp. 112-118.

45/ Ibid.
 E/CN.4/Sub.2/1994/9
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46/ Decision of the Third Agrarian Court of the District of Antioquia,

Colombia (24 February 1993).

47/ Supreme Court reports of 31 May 1990.

48/ Reports of a 1994 session in New Mexico, USA, and a 1993 session in
Gland, Switzerland, are available from the IUCN World Conservation Union.

49/ See A/48/269, sect. II.

50/ Letter DDN/JUR/89/1405 AAB/VR of 29 December 1989.

51/ Above-mentioned reply to the Special Rapporteur and document

DOM/DIRHPG/AAB/RAF entitled "Protection of the natural environment in time of
armed conflict: an overview of the state of international humanitarian law
and of the position of the International Committee of the Red Cross", Geneva,
7 August 1991.

52/ See in particular:

- Antoine Bouvier, "La protection de l’environnement naturel en

période de conflit armé", Revue internationale de la Croix-Rouge,
No. 792, 1991;

- Philippe Antoine, "Droit international humanitaire et protection de

l’environnement en cas de conflict armé"; Adams Roberts "La
destruction de l’environnement pendant la guerre du Golfe de 1991";
and Antoine Bouvier "Travaux récents relatifs à la protection de
l’environnement en periode de conflit armé", Revue internationale
de la Croix-Rouge, No. 798, 1992;

- Ksentini F. Zohra, "Droit internationale humanitaire et protection

des populations, de leurs biens et de l’environnement", Revue
algérienne des relations internationales, No. 23, 1993.

53/ E/CN.4/Sub.2/1990/12, para. 5, and E/CN.4/Sub.2/1993/7,

paras. 113-115.

54/ See in particular the Charter of the United Nations, Articles 1, 2,

55 and 56.

55/ General Assembly resolution 3384 (XXX) of 10 November 1975.

56/ General Assembly resolution 39/11 of 12 November 1984.

57/ Work on this topic began in 1978. Mr. Robert Quentin-Baxter was
Special Rapporteur from 1978 until 1985. In 1985, Mr. Julio Barboza was
appointed Special Rapporteur.

58/ E/1994/16.
E/CN.4/Sub.2/1994/9
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59/ A/45/696/Add.1, annex, second preambular paragraph.

60/ "Spotlight Tchernobyl", Bulletin of the League of Red Cross and Red
Crescent Societies, January 1991.

61/ A.E. Fry: "International Transport of Hazardous Waste",

Environmental Science and Technology, 1989, p. 509.

62/ H. Yakowitz: "Global Hazardous Transfers", Environmental Science

and Technology, 1989, p. 540.

63/ Ibid.

64/ S. Rublack: "Fighting transboundary waste streams: Will the Basel

Convention help?", Verfassung und recht in ubersee 1989, p. 367.

65/ C. Hitz and J.R. Ehrnefeld: "Transboundary Movement of Hazardous

Wastes. A Comparative Analysis of Policy Options to Control the International
Waste Trade", Environmental Affairs, Vol. 3, Winter 1991, p. 29.

66/ Pambou-Tchivounda: "L’interdiction de déverser des déchets toxiques

dans le tiers-monde; le cas de l’Afrique", Annuaire français de droit
international, 1988, p. 709.

67/ Resolution 43/75 - entitled "Dumping of radioactive wastes".

68/ See Principle 21 of the Stockholm Declaration; General Assembly

resolution 36/166 dated 16 December 1981; and the "Cairo Guidelines and
Principles for the Environmentally Sound Management of Hazardous Wastes",
UNEP/GC/DEC/14/30.

69/ A/CONF.151.4 (Part III), chap. 24.

70/ See "Women and the environment", Report of the Secretary-General of

the United Nations to the thirty-sixth session of the Commission on the Status
of Women (E/CN.6/1992/9).

71/ Ibid., p. 7.

72/ "Human development report", Economica, 1993, pp. 3 and 27. See also
the publications of the Interparliamentary Union, including: Distribution of
seats between men and women in national parliaments. Statistical data from
1945 to 30 June 1991, Series "Reports and documents", No. 18, Geneva, 1991;
Women and political power. Survey carried out among the 150 national
parliaments existing as of 31 October 1991, Series "Reports and documents",
No. 19, Geneva, 1992.
 E/CN.4/Sub.2/1994/9
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73/ E/CN.6/1990/2, subsequently published under the title Women in

Politics and Decision-making in the Late Twentieth Century - A United Nations
Study, Martinus Nijhof publishers, 1992.

74/ UNICEF, The state of the world’s children 1994.

75/ See the reports of the Subcommission’s Working Group on Contemporary

Forms of Slavery.

76/ UNICEF, op. cit. See also: UNICEF and UNEP, 1990: Children and
the environment, UNEP, Nairobi and UNICEF, New York; UNICEF, 1989: Children
and environment: a UNICEF strategy for sustainable development, document for
the 1989 Executive Board session (E/ICEF/1989/L.6); Report of the Symposium
"Women and children first", Geneva, 27-30 May 1991, organized under the
auspices of UNCED, UNFPA, the Government of Denmark and UNICEF.

77/ Study by Mr. Leandro Despouy, Special Rapporteur of the

Sub-Commission, United Nations, 1993 (United Nations publication,
Sales No. E.92.XIV).

78/ Extract from a speech given by the Deputy Chairperson of Disabled

Peoples’ International, Mr. Kalle Konkkola, at the Symposium on Environment
and Disability, Rio de Janeiro, June 1992.

79/ See E/CN.4/Sub.2/1993/7, paras. 101-106.

80/ The Convention relating to the Status of Refugees, which entered

into force on 22 April 1954, defines a refugee as one who flees his country of
origin due to a "well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political
opinion".

81/ The Protocol relating to the Status of Refugees, which entered into
force on 4 October 1967, incorporates the Convention definition of refugee
without restrictions as to date or geography.

82/ The OAU Convention governing the Specific Aspects of Refugee

Problems in Africa of 10 September 1969 states that the term "refugee"
includes every person who flees his or her country of origin "owing to
external aggression, occupation, foreign domination, or events seriously
disturbing public order".

83/ The Cartagena Declaration on Refugees of 22 November 1984 defines

refugees as "persons who have fled their country because their lives, safety
or freedom have been threatened by generalized violence, foreign aggression,
international conflicts, massive violations of human rights or other
circumstances which have disturbed the public order".

84/ See The State of the World’s Refugees: The Challenge of Protection,
UNHCR, Penguin Books, 1993.
E/CN.4/Sub.2/1994/9
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85/ E/CN.4/1993/35, annex and E/CN.4/1994/44 and Add.1.

86/ See Sadruddin Aga Khan, Legal Problems relating to Refugees and
Displaced Persons, 149 Recueil des Cours 287 (1976-I).

87/ UNHCR, Note on International Protection submitted to the Executive

Committee of the High Commissioner’s Programme (A/AC.96/199), 1992; see also
statement by the United Nations High Commissioner for Refugees at the
United Nations Conference on Environment and Development, Rio de Janeiro,
10 June 1992.

88/ See World Development Report, World Bank, and Human Development
Report 1993, UNDP, op. cit.

89/ See Sub-Commission resolution 1991/28 dated 29 August 1991;

preliminary report by Mr. Al-Khasawneh and Mr. R. Hatano on "The human rights
dimensions of population transfer, including the implantation of settlers"
(E/CN.4/Sub.2/1993/17); working paper by Mrs. Mbonu (E/CN.4/Sub.2/1991/47).

90/ See article 52 of the Vienna Convention on the Law of Treaties.

91/ CCPR/C/21/Rev.1, pp. 4-5.

92/ Taken from the comments transmitted by Mr. Galicki (Poland) to the
Special Rapporteur.

93/ R.G. Ramcharan, The Right to Life, The Hague, 1983, pp. 310-311.

94/ In "The parallel evolutions of international human rights protection

and of environmental protection and the absence of restrictions upon the
exercise of recognized human rights", Revista del Instituto Interamericano de
Derechos Humanos vol.13, 1991, p.50.

95/ Declaration of the United Nations Conference on the Human

Environment (Stockholm, 1972), Principle 1.

96/ See E/CN.4/Sub.2/1992/7, paras. 73-74.

97/ See E/CN.4/Sub.2/1992/7, paras. 94-95.

98/ Case No. 7615 of 5 March 1985, in the annual report of the
Inter-American Commission on Human Rights, 1984-1985 (OEA/Ser.L.V/II/66).

99/ See Joint IMO/FAO/UNESCO/WMO Group of Experts on the Scientific

Aspects of Marine Pollution, GESAMP (A/7750) (1969); Convention for the
Prevention of Marine Pollution from Land-based Sources (Paris, 1974);
Convention for the Protection of the Mediterranean Sea against Pollution,
art. 2 (Barcelona 1976); Recommendation on Equal Right of Access and
Non-Discrimination in Relation to Transfrontier Pollution (OECD, 1977);
 E/CN.4/Sub.2/1994/9
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Convention for Cooperation in the Protection and Development of the Marine and
Coastal Environment of the West and Central African Region, art. 2 (Abidjan,
1981); United Nations Convention on the Law of the Sea, art. 1 (4) (1982).

100/ See background paper on "Health, the Environment and Sustainable

Development", prepared for the Commission on Sustainable Development by the
World Health Organization, Task Manager on Health, March 1994, p. 1.

101/ See E/CN.4/Sub.2/1993/7, para. 98.

102/ Conference held in Noordwijk, The Netherlands, 22-23 March 1994.

See E/CN.17/1994/12.

103/ See WHO background paper cited at note 95 supra.

104/ See Asbjørn Eide, Right to Adequate Food as a Human Right, Study
Series No. 1, United Nations publication, Sales No. E.89.XIV.2, 1989.

105/ Some of the most significant ones are the Chemicals Convention
(No. 170, 1990); the Safety and Health in Construction Convention (No. 167,
1988); the Asbestos Convention (No. 162, 1986); Occupational Safety and Health
Convention (No. 155, 1981) the Working Environment (Air Pollution, Noise and
Vibration) Convention (No. 148, 1977); the Occupational Cancer Convention
(No. 139, 1974); and the Benzene Convention (No. 136, 1971).

106/ See E/CN.4/Sub.2/1993/15, section II.

107/ See E/CN.4/Sub.2/1992/15, paras. 62-65.

108/ E/1992/23-E/C.12/1991/4, annex III. The Special Rapporteur on the

right to adequate housing shares the Committee’s views in this regard. See
E/CN.4/Sub.2/1993/15, para. 90.

109/ Revised guidelines regarding the form and contents of reports to be

submitted by States parties under arts. 16 and 17 of the International
Covenant on Economic, Social and Cultural Rights (E/1991/23-E/C.12/1990/8,
annex IV). The Committee’s Guidelines on State reporting and its General
Comment No. 4 stand as useful examples of how the United Nations and the
international community as a whole might explicate the meaning of other human
rights and enhance compliance with those rights.

110/ See E/CN.4/Sub.2/1992/15, para. 41; Commission on Human Rights

resolution 1993/77 of 10 March 1993; analytical report of the
Secretary-General on the practice of forced evictions (E/CN.4/1994/20).

111/ See the reports of the independent expert of the Commission on the
right of everyone to own property, Mr. Luis Valencia Rodríguez
(E/CN.4/1994/19 and Add.1 and E/CN.4/1993/15).
E/CN.4/Sub.2/1994/9
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112/ The Committee on Economic, Social and Cultural Rights has addressed
this concern in its General Comment No. 2 (1990). E/1990/23-E/C.12/1990/1,
annex III.

113/ Both these texts protect the rights to freedom of opinion and
expression, and to seek, receive and impart information through any media,
regardless of national boundaries.

114/ Economic and Social Council resolution 756 (XXIX) of 21 April 1960.

115/ For example, in the Convention on the International Right of

Correction (General Assembly resolution 630 (VII) OF 16 December 1952, annex),
Governments in countries where incorrect, distorted or damaging information
about other Governments has been disseminated are required to release a
correcting statement (called a "communiqué") provided by the injured
Government.

116/ UNESCO Convention of 16 November 1972.

117/ General Assembly resolution 37/7 of 28 October 1982.

118/ United Nations document A/46/632, 1991.

119/ Council Directive 90/313/EEC of 7 June 1990.

120/ For analysis of environmental information regarding the European

system of human rights, see Stefan Weber, "Environmental Information and the
European Convention on Human Rights", 12 Human Rights Law Journal 177 (1991).

121/ The Nordic Convention on the Protection of the Environment of

19 February 1979.

122/ Association of South-East Asian Nations Agreement on the

Conservation of Nature and Natural Resources of 9 July 1985.

123/ Antarctic Protocol on Environmental Protection [signed?]

4 October 1991, [int’l cite].

124/ See, for example, article 198 of the United Nations Convention on
the Law of the Sea of 10 December 1982 and art. 2 (a) of the Convention on
Early Notification of a Nuclear Accident, Vienna, 26 September 1986.

125/ Report of the Committee on Information, Official Records of the

General Assembly, Supplement No. 21 (A/45/21) p. 35.

126/ See Popular Participation in Decision Making for Development,

United Nations publication, Sales No. E.75.IV.10 (1975).
 E/CN.4/Sub.2/1994/9
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127/ See, in particular, the United Nations Declaration on Social

Progress and Development, General Assembly resolution 2542 (XXIV) of
11 December 1969, calling for Governments to adopt measures for participation
of all elements of society in social and economic development schemes.

128/ General Assembly resolution 37/55 of 3 December 1982.

129/ See, for example, E/CN.4/1985/10 and Add.1 and 2; E/CN.4/1991/11.

130/ UNEP/Z/Ser.A/9 (1989).

131/ The Special Rapporteur has analysed many cases brought before
national courts, European human rights bodies, the Inter-American Commission
on Human Rights and United Nations human rights bodies. See
E/CN.4/Sub.2/1992/7 and E/CN.4/Sub.2/1993/7.

132/ Report of the Secretary-General: "The balance which should be

established between scientific and technological progress and the
intellectual, spiritual, cultural and moral advancement of humanity"
(E/CN.4/1199), thirty-second session of the Commission on Human Rights, 1976,
p. 37.

133/ Proclaimed by the General Conference of UNESCO at its fortieth

session, on 4 November 1966. See "A Compilation of International
Instruments", United Nations, Sales No. E.93.XIV.1, pp. 591-594.
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Annex I

DRAFT PRINCIPLES ON HUMAN RIGHTS AND THE ENVIRONMENT

Preamble

Guided by the Charter of the United Nations, the Universal Declaration of

Human Rights, the International Covenant on Economic, Social and Cultural
Rights, the International Covenant on Civil and Political Rights, the Vienna
Declaration and Programme of Action of the World Conference of Human Rights,
and other relevant international human rights instruments,

Guided also by the Stockholm Declaration of the United Nations Conference

on the Human Environment, the World Charter for Nature, the Rio Declaration on
Environment and Development, Agenda 21: Programme of Action for Sustainable
Development, and other relevant instruments of international environmental
law,

Guided further by the Declaration on the Right to Development, which

recognizes that the right to development is an essential human right and that
the human person is the central subject of development,

Guided by fundamental principles of international humanitarian law,

Reaffirming the universality, indivisibility and interdependence of all

human rights,

Recognizing that sustainable development links the right to development

and the right to a secure, healthy and ecologically sound environment,

Recalling the right of peoples to self-determination by virtue of which

they have the right freely to determine their political status and to pursue
their economic, social and cultural development,

Deeply concerned by the severe human rights consequences of environmental

harm caused by poverty, structural adjustment and debt programmes and by
international trade and intellectual property regimes,

Convinced that the potential irreversibility of environmental harm gives

special responsibility to prevent such harm,

Concerned that human rights violations lead to environmental degradation

and that environmental degradation leads to human rights violations,

Declare the following principles:

Part I

1. Human rights, an ecologically sound environment, sustainable development

and peace are interdependent and indivisible.
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2. All persons have the right to a secure, healthy and ecologically sound
environment. This right and other human rights, including civil, cultural,
economic, political and social rights, are universal, interdependent and
indivisible.

3. All persons shall be free from any form of discrimination in regard to

actions and decisions that affect the environment.

4. All persons have the right to an environment adequate to meet equitably

the needs of present generations and that does not impair the rights of future
generations to meet equitably their needs.

Part II

5. All persons have the right to freedom from pollution, environmental

degradation and activities that adversely affect the environment, threaten
life, health, livelihood, well-being or sustainable development within, across
or outside national boundaries.

6. All persons have the right to protection and preservation of the air,
soil, water, sea-ice, flora and fauna, and the essential processes and areas
necessary to maintain biological diversity and ecosystems.

7. All persons have the right to the highest attainable standard of health
free from environmental harm.

8. All persons have the right to safe and healthy food and water adequate to
their well-being.

9. All persons have the right to a safe and healthy working environment.

10. All persons have the right to adequate housing, land tenure and living
conditions in a secure, healthy and ecologically sound environment.

11. (a) All persons have the right not to be evicted from their homes or land
for the purpose of, or as a consequence of, decisions or actions affecting the
environment, except in emergencies or due to a compelling purpose benefiting
society as a whole and not attainable by other means.

(b) All persons have the right to participate effectively in decisions

and to negotiate concerning their eviction and the right, if evicted, to
timely and adequate restitution, compensation and/or appropriate and
sufficient accommodation or land.

12. All persons have the right to timely assistance in the event of natural
or technological or other human-caused catastrophes.

13. Everyone has the right to benefit equitably from the conservation and
sustainable use of nature and natural resources for cultural, ecological,
educational, health, livelihood, recreational, spiritual and other purposes.
This includes ecologically sound access to nature.
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Everyone has the right to preservation of unique sites consistent with

the fundamental rights of persons or groups living in the area.

14. Indigenous peoples have the right to control their lands, territories and
natural resources and to maintain their traditional way of life. This
includes the right to security in the enjoyment of their means of subsistence.

Indigenous peoples have the right to protection against any action or

course of conduct that may result in the destruction or degradation of their
territories, including land, air, water, sea-ice, wildlife or other resources.

Part III

15. All persons have the right to information concerning the environment.
This includes information, howsoever compiled, on actions or courses of
conduct that may affect the environment and information necessary to enable
effective public participation in environmental decision-making. The
information shall be timely, clear, understandable and available without undue
financial burden to the applicant.

16. All persons have the right to hold and express opinions and to
disseminate ideas and information regarding the environment.

17. All persons have the right to environmental and human rights education.

18. All persons have the right to active, free and meaningful participation
in planning and decision-making activities and processes that may have an
impact on the environment and development. This includes the right to a prior
assessment of the environmental, developmental and human rights consequences
of proposed actions.

19. All persons have the right to associate freely and peacefully with others
for purposes of protecting the environment or the rights of persons affected
by environmental harm.

20. All persons have the right to effective remedies and redress in
administrative or judicial proceedings for environmental harm or the threat of
such harm.

Part IV

21. All persons, individually and in association with others, have the duty
to protect and preserve the environment.

22. All States shall respect and ensure the right to a secure, healthy and
ecologically sound environment. Accordingly, they shall adopt administrative,
legislative and other measures necessary to effectively implement the rights
in this Declaration.

These measures shall aim at the prevention of environmental harm, at the

provision of adequate remedies, and at the sustainable use of natural
resources and shall include, inter alia,
 E/CN.4/Sub.2/1994/9
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- Collection and dissemination of information concerning the

environment;

- Prior assessment and control, licensing, regulation or prohibition

of activities and substances potentially harmful to the
environment;

- Public participation in environmental decision-making;

- Effective administrative and judicial remedies and redress for

environmental harm or the threat of such harm;

- Monitoring, management and equitable sharing of natural resources;

- Measures to reduce wasteful processes of production and patterns of

consumption;

- Measures aimed at ensuring that transnational corporations,

wherever they operate, carry out their duties of environmental
protection, sustainable development and respect for human rights;
and

- Measures aimed at ensuring that the international organizations and

agencies to which they belong observe the rights and duties in this
Declaration.

23. States and all other parties shall avoid using the environment as a means
of war or inflicting significant, long-term or widespread harm on the
environment, and shall respect international law providing protection for the
environment in times of armed conflict and cooperate in its further
development.

24. All international organizations and agencies shall observe the rights and
duties in this Declaration.

Part V

25. In implementing the rights and duties in this Declaration, special

attention shall be given to vulnerable persons and groups.

26. The rights in this Declaration may be subject only to restrictions

provided by law and which are necessary to protect public order, health and
the fundamental rights and freedoms of others.

27. All persons are entitled to a social and international order in which the
rights in this Declaration can be fully realized.
E/CN.4/Sub.2/1994/9
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Annex II

MEETINGS WITH, AND CONTRIBUTIONS OF, EXPERTS AND

NON-GOVERNMENTAL ORGANIZATIONS

1. The Special Rapporteur appreciates the strong interest of

non-governmental organizations in her work and recognizes their many
valuable contributions. Since the beginning of her mandate, representatives
of many non-governmental organizations have met the Special Rapporteur, both
individually and in groups, to express their views and to submit information.

2. The first group meeting with representatives of non-governmental

organizations took place in August 1990 in Geneva when the Special Rapporteur
met with representatives of more than 20 non-governmental organizations. At
that session, facilitated by the Association des Consultants Internationaux en
Droits de l’Homme in conjunction with the Sierra Club Legal Defense Fund, the
Special Rapporteur was presented with situations that clearly illustrated to
her the scope and depth of human rights violations arising from environmental
problems and the human rights violations that cause environmental degradation.

3. A second major consultation took place in the spring of 1991 in two

parts - the first in New York and the second in San Francisco. These sessions
were funded by the Sierra Club Legal Defense Fund and assisted by the
United Nations Centre for Human Rights Liaison Office in New York. At both
these sessions the Special Rapporteur was accompanied by a staff member of the
Centre for Human Rights. At the session in New York, the Special Rapporteur
met with representatives of a number of non-governmental organizations and
scholars in the field invited by the Natural Heritage Institute and the Four
Directions Council.

4. In San Francisco, the Sierra Club Legal Defense Fund hosted a series of
meetings from 28 April to 4 May 1991. During that period, the Special
Rapporteur met with representatives of a number of organizations, and was also
provided with documentation.

5. During the United Nations Conference on Environment and Development in

Rio de Janeiro (1992), the Sierra Club Legal Defense Fund hosted a special
session for the Special Rapporteur to enable her to meet with representatives
of non-governmental organizations and individuals concerned with human rights
and the environment from all parts of the world, to exchange views and to
receive information.

6. During the World Conference on Human Rights in Vienna (1993), the

Special Rapporteur met informally with a number of representatives from
non-governmental organizations and experts.

7. In the course of these consultations with non-governmental organizations

and experts, a number of substantive and structural concerns were expressed,
including:

(a) Self-determination and the environment, especially with respect to

the relationship between indigenous peoples and the massive export of natural
resources and related ecological destruction;
 E/CN.4/Sub.2/1994/9
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(b) The lack of timely and relevant information about projects with
severe environmental impacts;

(c) The imbalance between the resources available to groups interested

in protecting human rights and the environment and the resources available to
Governments and/or multinational enterprises;

(d) The human rights and environmental implications of large-scale

disasters;

(e) The forced relocation of indigenous peoples and the subsequent

ecological ruin of their traditional lands and sacred sites;

(f) The insufficient attention paid by international financial

institutions to the special environmental needs of indigenous peoples and
other vulnerable groups.

8. Following the Special Rapporteur’s recommendation, contained in

her 1993 report, that the Centre for Human Rights should convene an expert
meeting on human rights and the environment, the Sub-Commission on Prevention
of Discrimination and Protection of Minorities, in its resolution 1993/32
of 25 August 1993, invited the Secretary-General to organize such a meeting.
Due to serious budgetary problems, the Secretary-General was unable to do so.
However, the Sierra Club Legal Defense Fund, in association with the Société
suisse pour la protection de l’environnement and the Association mondiale pour
l’école instrument de paix, did sponsor the meeting, with the Centre for Human
Rights providing the facilities and staff.

9. The expert meeting on human rights and the environment was held from 15
to 19 May 1994 at Geneva, and attended by the following experts:

James Cameron Foundation for International Environmental Law

and Development, London

David Goldberg University of Glasgow; International Federation

of Human Rights

Mario Ibarra International Indian Treaty Council

Alexandre Kiss Centre for Environmental Law; University of

Strasbourg; European Council for Environmental
Law; International Institute of Human Rights

Miloon Kothari Centre for Housing Rights and Evictions;

Habitat International Coalition

Meenakshi Raman Consumers Association of Penang, Malaysia

Dinah Shelton Santa Clara University

Anthony Simpson Australian Conservation Foundation;

International Commission of Jurists
E/CN.4/Sub.2/1994/9
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Tobheka Thamage Tsoga Environmental Resources Centre,

South Africa

Antonio Augusto Judge ad hoc, Inter-American Court of Human

Cancado Trindade Rights; University of Brasilia

Lauri Adams )
David McDonald )
Adriana Fabra Aguilar) Sierra Club Legal Defense Fund
Yves Ladore )
Karen Parker )
Neil Popovic )

10. The following persons were also present: Mr. Philip Alston, Chairperson
of the Committee on Economic, Social and Cultural Rights; Mr. Francis Deng,
Representative of the Secretary-General on internally displaced persons;
Mrs. Erica-Irene Daes, Chairperson of the Working Group on Indigenous
Populations; Mr. Rajindar Sachar, Special Rapporteur on the right to adequate
housing.

11. The following non-governmental organizations contributed to the meeting

through representation, comments and/or recommendations: International
Commission of Jurists, Disabled People’s International, International
Educational Development, Human Rights and Natural Heritage Institute.

12. As part of the Geneva expert session, the Special Rapporteur also met
representatives of the World Health Organization, the International Committee
of the Red Cross and the Geneva Liaison Office of the United Nations
Environment Programme for an exchange of views regarding the draft declaration
and other issues of common concern.

13. The Special Rapporteur also received information on human rights and the
environment from non-governmental organizations during the course of debates
on human rights and the environment in both the Sub-Commission and the
Commission on Human Rights.
 E/CN.4/Sub.2/1994/9
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Annex III

DEVELOPMENTS IN NATIONAL LEGISLATION AND PRACTICES

A. Summary of constitutional provisions

In her two progress reports in 1992 (E/CN.4/Sub.2/1992/7 and Add.1) and

in her report of 1993 (E/CN.4/Sub.2/1993/7), the Special Rapporteur noted that
many countries had devoted constitutional provisions to the environment. The
information reproduced below comprises the data included in the previous
reports and those recently communicated to the Special Rapporteur.

1. Afghanistan

The 1990 Constitution proclaims that "the State shall adopt and implement
the necessary measures for the protection of nature, natural wealth and
reasonable utilization of natural resources, improvement of the living
environment, prevention of pollution of water and air, and the conservation
and survival of animals and plants (chap. II, art. 32).

2. South Africa

The Constitution of South Africa, which came into force on 27 April 1994,
stipulates that "Every person shall have the right to an environment which is
not detrimental to his or her health or well-being" (sect. 29).

3. Albania

The 1976 Constitution stipulates that "protection of the land, natural

riches, waters and the atmosphere from damage and pollution is a duty of the
State, of economic and social organizations and of all citizens" (chap. 1B,
art. 20).

4. Algeria

The revised Constitution of 1989 stipulates, in essence, that every

citizen has a duty to protect public property and the interests of the
national community and to respect the property of others. Under article 17,
public property encompasses the various components of the ecosystem (title I,
chap. III, art. 63).

5. Germany

It is the responsibility of the legislature to protect the natural bases

of man’s existence, with due regard for prevention, the "polluter-pays"
principle and cooperation, and to promote uniform ecological conditions of a
high standard (text of 1990 supplementing the Basic Law, chap. VII, art. 34).

6. Angola

The 1992 Constitution stipulates that "the Government of Angola ... shall
seek to protect and preserve the unique environmental heritage of Angola in
order to ensure the quality of the human environment for all" (art. IX).
E/CN.4/Sub.2/1994/9
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7. Bahrain

The 1973 Constitution proclaims that the State shall ensure the
preservation and proper utilization of natural resources, which are its
property (art. 11, second part).

8. Bolivia

The 1967 Constitution provides that "assets in the patrimony of the

nation constitute inviolable public property, and it is the duty of every
inhabitant ... to respect and protect that property" (art. 137).

9. Brazil

The 1988 Constitution attaches particular importance to protecting the

environment and combating pollution in all its forms. Effective enjoyment of
the rights listed in article 225 is accompanied by certain obligations on the
part of the authorities, such as the imposition of criminal and administrative
penalties for activities considered detrimental to the environment.
Article 225 (1) provides that "in order to ensure that this right is
effectively available, it is incumbent on the Government to:

I. Preserve and restore essential ecological processes and arrange for the
ecological management of species and ecosystems;

II. Preserve the diversity and integrity of the genetic patrimony of Brazil
and oversee the activities of entities engaged in research and manipulation of
genetic material;

III. Define, in all units of the Federation, the geographical areas and
components thereof that are to be specially protected (these decisions may be
amended or repealed only by the legislature and any use that compromises the
integrity of the features which justify protection of such areas shall be
prohibited);

IV. Require, pursuant to the law, an environmental impact study to be made

prior to the installation of a project or activity liable to cause significant
harm to the environment, and the results of such study to be made public.

V. Monitor the development, marketing and use of techniques, methods and

substances that present a risk to life, the quality of life or the
environment;

VI. Promote environmental education at all levels of instruction, and help to

increase public awareness of the need to preserve the environment;

VII. Protect the flora and fauna; practices which put their ecological
function at risk, lead to the extinction of species or subject animals to
cruel treatment are hereby prohibited."

Certain areas are specially protected and the rights of indigenous

populations, particularly their rights over the lands they traditionally
occupy, are recognized by the Constitution (art. 23).
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10. Bulgaria

The 1991 Constitution provides that "Bulgaria shall ensure the protection
and conservation of the environment, the sustenance of animals and the
maintenance of their diversity, and the rational use of ... natural ...
resources", and that while "citizens have the right to a healthy and
favourable environment ... they [also] have an obligation to protect the
environment" (chap. II, art. 31).

11. Burkina Faso

The 1991 Constitution provides for "the right to a healthy environment"

and stipulates that "the protection, defence and promotion of the environment
shall be the duty of all" (title I, arts. 30 and 31).

12. Chile

The 1980 Constitution guarantees everyone "the right to live in an

environment free from contamination. It is the duty of the State to watch
over the protection of this right and the preservation of the environment"
(art. 19 (8)). An appeal may be lodged to ensure observance of these
provisions.

13. China

The 1982 Constitution stipulates that "the State shall protect and
improve the living environment and the ecological environment, and prevent and
remedy pollution and other public hazards". It also ensures the rational use
of natural resources and protects rare animals and plants (chap. I, arts. 9
and 26).

14. Colombia

The 1991 Constitution obliges the government authorities and the people
to protect the cultural and natural assets of the nation. It establishes a
link between public health and protection of the environment (arts. 8, 49, 79,
80, 86 and 88).

15. Korea

The 1987 Constitution proclaims that "All citizens have the right to a
healthy and pleasant environment. The State and all citizens shall endeavour
to protect the environment" (chap. II, art. 35).

16. Cuba

The amended 1992 Constitution provides, in essence, that the State shall
protect the environment and the country’s natural resources, over which it
shall exercise sovereignty. The State also recognizes the close link between
the environment and sustainable economic and social development, which ensures
the survival, well-being and security of present and future generations.
Citizens also have a duty to contribute to the protection of nature’s rich
potential (arts. 11 (b) and 27).
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17. El Salvador

The 1983 Constitution stipulates that "The State shall maintain permanent
control over the quality of pharmaceutical, chemical and food products and
over ... atmospheric conditions which may affect health and well-being"
(chap. 1, art. 69).

18. United Arab Emirates

The 1971 Constitution proclaims that "The natural resources and wealth of
each Emirate shall be considered the public property of that Emirate. Society
shall be responsible for the protection and proper exploitation of such
natural resources and wealth for the benefit of the national economy"
(chap. 2, art. 23).

19. Ecuador

The 1983 Constitution guarantees the right to live in an environment free

of contamination (title II, sect. 1, art. 19 (2)).

20. Spain

The 1978 Constitution accords everyone "the right to enjoy an environment

suitable for the development of the person" and imposes on them "the duty to
preserve it". In addition "The public authorities shall concern themselves
with the rational use of all natural resources". Any one violating these
provisions is liable to criminal or administrative sanctions (chap. III,
art. 45).

21. Ethiopia

The 1987 Constitution guarantees maintenance of the ecological balance

and rational distribution of human settlements "in order to create favourable
conditions for development" (part II, arts. 10 and 55).

22. Russian Federation

The 1993 Constitution stipulates that "Every person has an obligation to

protect nature, preserve its wealth and improve the environment" (art. 58).
Damage to the environment is punishable by law and may be subject to
compensation. The protection and rational use of natural resources constitute
a further established principle (art. 49).

23. Greece

The 1975 Constitution provides that the protection of the natural and
cultural environment is a duty of the State (art. 24).

24. Guatemala

The 1985 Constitution promotes social, economic and technological

development which will prevent pollution of the environment and maintain the
ecological balance (chap. II, sect. IV, art. 97).
 E/CN.4/Sub.2/1994/9
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25. Equatorial Guinea

The 1982 Constitution stipulates that the State recognizes the right to
the protection of health (title VI, chap. II, art. 60).

26. Guyana

The 1980 Constitution obliges every citizen to participate in activities

to improve the environment and protect the health of the nation. In addition,
the interests of present and future generations are taken into account, and
the use of natural resources must be rational (arts. 25 and 36).

27. Haiti

The 1987 Constitution imposes on citizens the civic duty "to respect and
protect the environment". "Practices that are liable to disturb the
ecological balance are strictly prohibited", as is the importation of "wastes
or residues ... from foreign sources" (title XI, chap. II, arts. 253 and 258).

28. Honduras

The 1982 Constitution stipulates that "the State shall maintain a

satisfactory environment for the protection of the health of all" (chap. VII,
art. 145).

29. Hungary

The revised Constitution of 1990 "recognizes and enforces the right of

everyone to a healthy environment". Physical and mental health, safety in the
workplace and the provision of medical care are further rights recognized by
the Constitution (chap. I, sect. 18, and chap. XII, sect. 70/D).

30. India

The 1977 Constitution, as amended in 1985, provides that "The State shall
endeavour to protect and improve the environment and to safeguard the forests
and wildlife" and makes it the duty of every citizen "to protect and improve
the natural environment" (part IV, arts. 48 A and 51 A).

31. Islamic Republic of Iran

The 1980 Constitution institutes the protection of the environment in

which the present and future generations must live as a public responsibility.
Economic or other activities which pollute the environment are prohibited
(chap. IV, art. 50).

32. Malta

The 1964 Constitution stipulates that "The State shall safeguard the
landscape and the historical and artistic patrimony of the Nation" (chap. II,
art. 9).
E/CN.4/Sub.2/1994/9
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33. Mexico

The 1917 Constitution, as amended in 1987, provides that the State shall
have the right to regulate the use of natural resources which are susceptible
of appropriation, in order to ensure a more equitable distribution of public
wealth, to achieve well-balanced development and to improve the living
conditions of the urban and rural population. A link is established between
the preservation of the ecological balance, human settlements and the
protection of natural resources (art. 27).

34. Mongolia

The 1992 Constitution recognizes the various components of the ecosystem

as subject to national sovereignty and hence State protection (chap. I,
art. 6). It also recognizes the right of citizens to a healthy and safe
environment, the right to be protected against environmental pollution and
ecological imbalances, and the right to seek legal redress for violations of
those rights. It also imposes on citizens the duty to protect nature and the
environment (chap. II, arts. 16 and 17).

35. Mozambique

The 1990 Constitution provides that "The State shall promote efforts to
guarantee the ecological balance and the preservation of the environment for
the betterment of the quality of life of its citizens" (chap. IV, art. 37).

36. Namibia

The 1990 Constitution, with a view to promoting the welfare of the

people, stipulates that the State shall maintain ecosystems, essential
ecological processes and biological diversity. Protection of the interests of
present and future generations and measures against dumping or recycling of
foreign nuclear and toxic waste are other responsibilities of the State
(chap. II, art. 95).

37. Nepal

The 1990 Constitution defines as State priorities the protection of the

environment throughout the country, the prevention of damage to the
environment and enhancing the consciousness of the public regarding
environmental cleanliness (art. 26).

38. Nicaragua

Under the 1987 Constitution, Nicaraguans have the right to live in a

healthy environment, which the State has the duty to preserve, develop and
restore. The same is true of natural resources, which form part of the
national heritage and must be exploited in a rational way (title IV,
chap. III, art. 60 and title VI, chap. I, art. 102).
 E/CN.4/Sub.2/1994/9
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39. Nigeria

The 1979 Constitution stipulates that "exploitation of human or natural

resources for reasons other than the good of the community shall be
prohibited" (chap. II, art. 18).

40. Panama

The 1980 Constitution provides that "It is a fundamental duty of the

State to see to the preservation of ecological conditions and to prevent
pollution of the environment and imbalance in ecosystems, with a view to
ensuring economic and social development" (chap. VI, art. 110).

41. Papua New Guinea

The 1984 Constitution defines the fourth goal of the State as the
conservation of the environment and the rational use of natural resources "for
the benefit of future generations". In this respect, all persons have the
basic obligation to "protect [the country] and to safeguard the national
wealth, resources and environment" (chap. IV).

42. Paraguay

The 1967 Constitution provides that "The State shall conserve the
forestry resources of the country, as well as other renewable natural
resources" (chap. VI, art. 132).

43. Netherlands

The 1989 Constitution accords priority to any action by the State to

promote the "distribution of wealth", regional planning, and the protection
and improvement of the environment (art. 20).

44. Peru

The 1979 Constitution provides that "Everyone has the right to live in a
healthy environment" and that "It is the obligation of the State to prevent
and control environmental pollution". It also recognizes that natural
resources are the patrimony of the nation (chap. II, arts. 118 and 123).

45. Philippines

The 1986 Constitution protects exclusively the country’s marine wealth

and the rights of its fishermen (art. XII, sects. 2 and 7).

46. Poland

The 1989 Constitution provides that citizens have the right to a natural
environment and the duty to protect it (chap. VIII, art. 71).
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47. Portugal

The 1982 Constitution provides that "Everyone shall have the right to a
healthy and ecologically balanced human environment and the duty to defend
it". The State also has the duty to protect the environment, and the
Constitution identifies the measures to be taken to that end (part I,
title III, chap. II, art. 66).

48. Lao People’s Democratic Republic

The 1991 Constitution imposes on all organizations and all citizens the
duty to protect the environment and natural resources (chap. II, art. 17).

49. Romania

Article 22 of the 1991 Constitution (see E/CN.4/Sub.2/1992/7), which was

contained in the draft constitution, does not appear in the Constitution in
the form in which it was adopted.

50. Seychelles

The 1992 Constitution (Preparation and Promulgation) Act states that "The
State pledges itself to protect, preserve and improve the environment and
natural resources", and that it is the duty of every citizen to do likewise
(chap. IV, arts. 40 and 41).

51. Slovakia

The 1992 Constitution accords everyone the right to a favourable

environment and imposes the obligation to protect and promote the environment
and cultural heritage. It also recognizes the right of everyone to "timely
and complete information about the state of the living environment and about
the causes and effects of this state" (chap. II, arts. 44 and 45).

52. Slovenia

The 1991 Constitution provides that "All persons have the right to a
healthy living environment in accordance with the law" and that "The State
shall ensure a healthy living environment". It further provides that "All
persons are required ... to protect natural points of interest and cultural
monuments" (title III, arts. 72 and 73).

53. Sri Lanka

The 1977 Constitution stipulates that "The State shall protect, preserve
and improve the environment for the benefit of the community" and makes it the
duty of every person "to protect nature and conserve its riches" (chap. VI,
arts. 27 and 28).
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54. Sweden

The 1975 Constitution, as amended in 1978, provides that "it shall be

incumbent on the community to guarantee the right to work, housing and
education, and to promote social care and security, as well as a favourable
living environment" (chap. I, art. 2, para. 2).

55. Taiwan

The 1947 Constitution provides that the State shall foster, inter alia,
the development of "water conservancy" and "public health", and "protect the
land and ... assist in its development" (chap. XIII, sect. 6, art. 169).

56. Tanzania

The 1984 Constitution calls for guarantees that natural resources will be
preserved, developed and used for the benefit of all citizens. It also
provides that "everyone has the responsibility of conserving natural
resources" (sect. 2, paras. 9.1 and 27.1).

57. Chad

Under the 1989 Constitution, one of the fundamental responsibilities of

the State is "to preserve the environment and natural resources" (art. 1).

58. Thailand

The 1978 Constitution stipulates that "The State shall preserve the
environmental balance and eliminate pollution, which jeopardizes the health
and hygiene of the people", and "shall have an appropriate demographic policy"
(chap. V, arts. 65 and 69).

59. Turkey

The 1982 Constitution stipulates that "Every person has the right to live
in a healthy, balanced environment." It is the duty of the State to protect
the environment (chap. VIII, sect. A, art. 56).

60. Vanuatu

The 1980 Constitution stipulates that every person has the duty "to
protect (Vanuatu) and to safeguard the national wealth, resources and the
environment in the interests of the present generation and future generations"
(title II, chap. II, art. 7).

61. Viet Nam

The 1980 Constitution provides that all the wealth and natural resources
of the State are the property of the people and that everyone has the duty to
protect and improve the environment (chap. 2, arts. 19, 20 and 36).
E/CN.4/Sub.2/1994/9
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B. National legislation

In her earlier progress reports, the Special Rapporteur cited provisions

of national legislation on the environment. Other examples received after
publication of those reports are set out below.

1. Germany

A joint Bundestag-Bundesrat Committee on the Constitution has recommended

that environmental protection be incorporated in the Basic Law as a national
objective. The new clause reads as follows: "For the sake of present and
future generations, the State shall protect the natural sources of life within
the framework of the constitutional order through the Legislature and, in
accordance with the law and the principles of justice, the executive and the
judiciary".

2. Egypt

The Government of Egypt has informed the Special Rapporteur of the

promulgation of Act No. 4/1994, on the environment, as part of the national
effort to ensure exercise of the right to a healthy environment. The Act
establishes the rules for protection of the atmosphere and marine and land
environments, governs the operation of environment monitoring bodies and
defines their functions in the context of coordination. It also embodies the
principle of compensation of individuals and corporate entities for damage
caused by pollution.

3. United States of America

In a communication addressed to the Special Rapporteur, the Government of

the United States of America states that: "the U.S. considers human rights
and environmental preservation to be two of the highest priorities of this
Government. On 11 February 1994, President Clinton issued an Executive Order
to the heads of all departments and agencies of the U.S. Government on the
subject: ’Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations’. The purpose of this Executive Order
was to underscore certain provisions of existing U.S. laws that can help
ensure that all communities in the United States of America live in a safe and
healthful environment".

4. Greenland

Greenland has embarked on a national and regional process for the

protection of indigenous populations in the Arctic with a view to ensuring
sustainable development for them.

5. Islamic Republic of Iran

Section 1 of the Environment Protection and Enhancement Act of 1974

stipulates that "None of the restrictions and regulations to be established in
respect of the areas and regions mentioned in section 5 (a) hereof shall
conflict with the ownership right and usufruct exercised legally by
individuals within such areas and regions". Section 11 also provides that
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"Considering the requirements and criteria established under the regulations

referred to in section 10 hereof, the Department shall distinguish such
factories and workshops that contribute to the pollution of the environment,
and shall give the owners or managers thereof notice either to do away with
the causes of the pollution within a definite period of time or to discontinue
operation [...]. In the event that any person concerned should object to such
notice he may lodge a complaint with the local court of first instance [...]."

7. Nepal

Following the United Nations Conference on Environment and Development,

the Government of Nepal implemented numerous measures for the protection of
the environment. In 1993, the Government adopted the "National Environmental
Impact Assessment Guidelines" as part of a general policy to promote an
integrated approach to the environment and development.

8. Romania

Draft legislation on the protection of the environment provides that the

State recognizes the right of everyone to a healthy environment. It sets out
a list of measures to be taken by the State to ensure the effective enjoyment
of this right.

C. Summary of new domestic cases

For those previously analysed by the Special Rapporteur, please see

documents E/CN.4/Sub.2/1992/7 and E/CN.4/Sub.2/1993/7.

1. Canada

In Regina v. Sparrow, the Canadian Supreme Court recognized the existence

of aboriginal rights and delineated a test to determine whether there had been
a prima facie infringement of those rights. The appellant, a member of the
Musqueam Band, was charged with fishing with a drift net longer than that
permitted by his Band’s food fishing licence. The Court held that the
Constitution Act, 1982 § 35 (1), which recognizes and affirms existing
aboriginal rights, requires that any regulation infringing upon indigenous
rights must be justified by a valid objective consistent with the Government’s
fiduciary duty toward the aboriginal peoples. Parties challenging legislation
as a prima facie infringement of indigenous rights must show: (i) that the
limitation is unreasonable; (ii) that the regulation imposes an undue burden;
and (iii) that it denies the holders their preferred means of exercising that
right. The Court found the Government’s public interest objective to be so
vague as to provide no meaningful guidance and so broad as to be unworkable.
It allowed the objective of conservation and resource management, however, as
consistent with aboriginal beliefs, practices and rights. If on remand it was
found that there had been an infringement, indigenous groups would enjoy
priority allocation over other commercial and consumer groups after legitimate
conservation needs had been met.
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2. Costa Rica

The Supreme Court of Costa Rica affirmed the right to a healthy

environment (Constitutional Chamber of the Supreme Court Vote No. 3705,
30 July 1993). The plaintiff brought the action on the grounds that his and
his neighbours’ rights to life and a healthy environment had been violated
because a cliff in their neighbourhood had been used as a dump. The Ministry
of Health submitted that he had issued an order to buy lots for an alternative
dump site within three months. The Court ordered that the dump be closed
immediately and held that the authorities had not been effective or diligent
enough in carrying out their obligation to protect life, health and the
environment. To this effect, the Court quoted the decision of the lower court
which asserted that life "is only possible when it exists in solidarity with
nature, which nourishes and sustains us - not only with regard to physical
food, but also with physical well-being. It constitutes a right which all
citizens possess to live in an environment free from contamination. This is
the basis of a just and productive society."

3. Mexico

Decision 12/91 of the Council of the National Commission for Human Rights
assigns to the Commission responsibility for dealing with complaints on
ecological matters. In this connection, the Commission has drawn up a
programme on human rights, ecology and health. In 1991 and 1992, the
Commission made six recommendations on the environment. Recommendation 110/91
of 8 November 1991, for example, was in response to a complaint lodged by
individuals that the authorities responsible for controlling and eliminating
pollution had failed to keep the public informed. The Commission recommended
that the authorities concerned should publicize widely through the media the
harmful effects of environmental degradation on health and the specific
measures which the public should take. Recommendation 101/92 of 22 May 1992
was in response to a complaint by the residents of the Nicolás Bravo and
Guadalupe Hidalgo de Tehuacón housing developments regarding irregularities in
the operation of enterprises in the area. The Commission recommended that an
investigation should be conducted into the standing of those enterprises with
regard to the law. The Government of Mexico has also informed the Special
Rapporteur of the establishment of the National Ecological Institute and the
Office of the Federal Advocate for Protection of the Environment under
Decision 4/92 of the Council of the National Commission for Human Rights.

4. Philippines

The Philippines Supreme Court recently affirmed the right of this and
future generations to a balanced and healthy ecology (Minors Oposas v.
Secretary of the Department of Environment and Natural Resources (DENR),
33 ILM 173 (1994)). The plaintiffs in that case, a group of minors
representing their generation as well as generations unborn, sought to have
all existing timber licences cancelled due to the advanced rate of
deforestation in the Philippines and its destructive effects on the
environment, indigenous cultures and "inter-generational equity". The Supreme
Court reversed the dismissal of the case, ruling that they not only had
standing to represent future generations, but had adequately asserted a right
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to a balanced and healthful ecology based on the Constitution, Executive Order

No. 192, title XIV, as well as natural law. "Such a right belongs to a
different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation ... the advancement of which may even
be said to predate all Governments and constitutions." The Court further
ruled that if the State did not carry out its "correlative duty to refrain
from impairing the environment," the repercussions would not only be felt by
this generation, but also those to come - "generations which stand to inherit
nothing but parched earth incapable of sustaining life".

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