International Convention on Human Rights (ICHR)

What does it mean by "allow for public participation in the review and permit process"? Does each decision regarding the environment must be officially voted upon? "Major activities undertaken" also sounds vague that it doesn't put more responsibility on the state to take appropriate actions and seems like there is little sanctions/consequences on countries that fail to comply, e.g. abuse of natural resources and dispose of untreated waste into waters.

Katie Tang (Hong Kong)

welcome and we look forward to your comments!

kirk boyd u.s.

There is no Article in the Universal Declaration, Twin Covenants or European or American Conventions providing for environmental rights. The African Charter, however, does recognize such a right. The African Charter is the most recent in the evolution of human rights documents. Given the dangers of global warming and the rapid, ongoing, extinction of species internationally, it is fitting to include environmental rights.

The NGO Draft International Convention provides a two-tired environmental right. The first is a right to a clean and healthy environment. Recognizing the breadth of this right, and the difficulty of having the judges interpret the scope of such a right, Article 9 is the first instance in which a key phrase is used to increase judicial deference. This phrase is “as defined by law.” The reason for its inclusion is to provide for greater deference by the court to the legislature. While the right is judicially enforceable, the court will typically defer to the judgment of the legislature to implement the right.

The term “as defined by law” is not used to for civil and political rights. The parameters of these rights are left to be defined by the court. Given the breadth of environmental protection, however, there is a concern that judges may end up serving as a super legislature. Therefore, the language creates the right to a clean and healthy environment, but requires greater deference by the court. This does not mean that the court would not act in any circumstance, but rather that the court will be much more deferential in exercising its authority.

For the second half of Article 9, the NGO Draft International Convention provides an absolute right for the preservation of species and habitat without use of the “as defined by law” phrase. In the instance of habitat, species often hold the equivalent of minority rights that require less deference and greater court determination of the scope of the right. A court can decide through the review of expert testimony if proper protections are being taken to preserve species and their habitat. In addition, Article 9 provides that major activities undertaken by government or private interests must allow for public participation in the review and permit process.

kirk boyd u.s.

Here we have the fifth freedom: Freedom for the Environment