A Clean Environment as a Human Right
Chapter Sixty-Six
Syllabus topic 3, "International Concern for Environment Protection"
Pages 197 to 199 of 663
In one line
MU's 2016 paper asks about the necessity of a clean environment for the protection and promotion of human rights, and the answer is that a clean environment is not one right among many but the precondition of several.
In exam wording: a clean environment is a necessary condition for the enjoyment of the rights to life, health, water, food, housing and an adequate standard of living, so that environmental degradation is a denial of those rights rather than merely a harm alongside them; that necessity is recognised in Principle 1 of the Stockholm Declaration 1972, Principle 1 of the Rio Declaration 1992, General Assembly resolution 76/300 of 2022, and, in Indian law, in the reading of Article 21 of the Constitution.
The argument, in four steps
Step one. Certain rights are guaranteed: life, health, water, food, housing.
Step two. Each of them depends on a physical condition. There is no right to health in air that causes disease. There is no right to water where the aquifer is contaminated. There is no right to food where the soil is poisoned.
Step three. Therefore the environmental condition is not external to the right. It is part of what the right consists of.
Step four. So a State that permits the destruction of that condition has not merely failed to protect the environment. It has failed to secure the right.
That four-step argument is the answer to MU's question and it should be the opening of any answer to it.
The instruments
Stockholm Principle 1. 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.
Rio Principle 1. Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.
General Assembly resolution 76/300 of 28 July 2022 recognises the right to a clean, healthy and sustainable environment as a human right, and affirms that its promotion requires the full implementation of the multilateral environmental agreements under the principles of international environmental law.
In Indian law, Article 21, read with Articles 48A and 51A(g).
The Indian route, and why it is the strongest example available
Facts. Vellore Citizens' Welfare Forum v. Union of India, AIR 1996 SC 2715. Tanneries in five districts of Tamil Nadu discharged untreated effluent onto land and into the Palar river. A survey found that nearly thirty-five thousand hectares of agricultural land in the tanneries belt had become partly or wholly unfit for cultivation and that drinking water had been spoiled. The petition came under Article 32.
A Clean Environment as a Human Right
Held. Sustainable development is customary international law, and the precautionary and polluter pays principles are essential features of it and are part of Indian environmental law, both because the Constitution and the statutes carry them and because customary international law not contrary to municipal law is deemed incorporated. The Court directed a Green Bench, the closure of defaulting tanneries and the levy of pollution fines. It also observed that the constitutional and statutory provisions protect a person's right to fresh air, clean water and a pollution-free environment.
Why it matters here. It shows both halves of the necessity argument at work: an environmental principle became enforceable because it was needed to protect a right, and the right was given content by the environmental principle.
What the recognition adds, and what it does not
| Adds | Does not add |
|---|---|
| Standing for an individual | A cause of action against a State that is not bound |
| A forum: a national court, a regional court, a treaty body | Jurisdiction where none exists |
| A remedy in the individual's favour | A remedy for harm to nature with no human victim |
| A presumption in interpretation | A rule that the environment prevails over development |
| A duty of procedural fairness: information, participation, remedy | An obligation to achieve any particular environmental outcome |
Worked example
A community's groundwater is contaminated by an industrial estate. Compare the two framings.
As an environmental claim. The estate has breached its consent conditions. The regulator must act. The community's role is to complain to the regulator, which may or may not act, and it has no remedy of its own.
As a rights claim. The contamination deprives the community of water and of health, and so of life under Article 21. The community petitions the High Court under Article 226. The burden is on the proponent to show that its operation is safe, after A.P. Pollution Control Board (II) v. Prof. M.V. Nayudu (Retd.), (2001) 2 SCC 62. The Court can order the estate closed, order remediation at the polluters' cost under the polluter pays principle as stated in Indian Council for Enviro-Legal Action v. Union of India, AIR 1996 SC 1446, and retain the case to supervise.
The second framing produces a forum, a burden of proof, a remedy and supervision. The first produces a complaint. That contrast is the whole of MU's question.
Criticism, which a good answer includes
It is anthropocentric. A right belongs to a person. The World Charter for Nature 1982 took the opposite view, that nature shall be respected and its essential processes shall not be impaired, and it has not prevailed.
It individualises a collective problem. A court decides the case before it. Air pollution across a city is not a series of individual cases.
A Clean Environment as a Human Right
It may not be a right at all in the strict sense. Its content is indeterminate: how clean is clean? The answer given in practice is that the right is to a process, an assessment, participation, a reasoned decision and a remedy, rather than to a specified environmental quality. That is an honest answer and an examiner will value it.
Quick revision
- Four steps: rights are guaranteed; each depends on a physical condition; the condition is part of the right; so degradation denies the right.
- Stockholm Principle 1; Rio Principle 1; General Assembly resolution 76/300 of 2022.
- India got there first through Article 21 with Articles 48A and 51A(g), and Vellore is the leading statement.
- Recognition adds standing, a forum, a remedy, an interpretive presumption and procedural fairness.
- Criticism: anthropocentric, individualising, and indeterminate in content.
Test yourself
1. State the four-step argument for the necessity of a clean environment to human rights. Rights are guaranteed; each depends on a physical condition; the condition is therefore part of the right rather than external to it; so a State that permits its destruction has failed to secure the right.
2. What is the status of General Assembly resolution 76/300? It is a resolution recognising the right to a clean, healthy and sustainable environment. It binds nobody and is strong evidence of opinio juris.
3. Give the strongest criticism of the rights approach and the best answer to it. That the right's content is indeterminate: how clean is clean. The answer in practice is that the right is to a process, assessment, participation, a reasoned decision and a remedy, rather than to a specified level of environmental quality.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.