UN Resolution 48/13

Environment, Human Rights and Class Power–2

Farooque Chowdhury

Environmental rights”, United Nations Environment Programme’s Environmental rights and governance says, “means any proclamation of a human right to environmental conditions of a specified quality.”

According to the document, “Human rights and the environment are intertwined; human rights cannot be enjoyed without a safe, clean and healthy environment; and sustainable environmental governance cannot exist without the establishment of and respect for human rights. This relationship is increasingly recognised, as the right to a healthy environment is enshrined in over 100 constitutions.

UNEP, in another document said:

“There are several established human rights related to the environment. Environmental rights are composed of substantive rights (fundamental rights) and procedural rights (tools used to achieve substantial rights).

“Substantive are those in which the environment has a direct effect on the existence or the enjoyment of the right itself. Substantive rights comprise of: civil and political rights, such as the rights to life, freedom of association and freedom from discrimination; economic and social rights such as rights to health, food and an adequate standard of living; cultural rights such as rights to access religious sites; and collective rights affected by environmental degradation, such as the rights of indigenous peoples.

“Procedural rights prescribe formal steps to be taken in enforcing legal rights. Procedural rights include 3 fundamental access rights: access to information, public participation, and access to justice.”

Accessing these rights by people including the working classes depend on their state of awareness and organisation/mobilisation. It’s impossible to enjoy these rights unless people have their organisation/mobilisation/initiative/leadership. In areas, these or part of these rights can be declared/enshrined in official or state documents, or partly executed by dominating capital. This declaration/enshrinement or execution by dominating capital depends on compulsions faced by capitals; and the compulsions come either from drive for regeneration of capital or accommodating part of social forces opposed to capital’s dominance over environment or diffusing discontent / restiveness of electorates / tax payers over horrible state / infringement of environment as capital, if mature, can’t dare to keep discontent unattended.

Only enactment of law, but void of its execution essentially carries no value. The Environmental Rule of Law, First Global Report is the first ever global assessment of environmental rule of law. The 2019 report by the UNEP found “weak enforcement to be a global trend that is exacerbating environmental threats, despite prolific growth in environmental laws and agencies worldwide over the last four decades.” “The UN Environment report found that despite a 38-fold increase in environmental laws put in place since 1972, failure to fully implement and enforce these laws is one of the greatest challenges to mitigating climate change, reducing pollution, [etc.].”

The report said:

If human society is to stay within the bounds of critical ecological thresholds, it is imperative that environmental laws are widely understood, respected, and enforced and the benefits of environmental protection are enjoyed by people and the planet. Environmental rule of law offers a framework for addressing the gap between environmental laws on the books and in practice […]

As of 2017, according to the report, 176 countries had environmental framework laws; 150 countries enshrined environmental protection or the right to a healthy environment in respective constitutions; and 164 countries created cabinet-level bodies for environmental protection. These and other environmental laws, rights, and institutions have helped slow, in cases reverse environmental degradation, and achieve the public health, economic, social, and human rights that benefit environmental protection.

It mentioned the existing reality:

Too often, implementation and enforcement of environmental laws and regulations falls far short of what is required to address environmental challenges. Laws sometimes lack clear standards or necessary mandates. Others are not tailored to national and local contexts and so fail to address the conditions on the ground. Implementing ministries are often underfunded and politically weak in comparison to ministries responsible for economic or natural resource development. [….] [A] backlash has also occurred as environmental defenders are killed, [etc.]. These shortfalls are by no means limited to developing nations [;] […] developed nations have found their performance […] lacking in certain respects. […] [E]nvironmental rule of law is a challenge for all countries.

The report highlighted steps that states can take to support environmental rule of law: Evaluate mandates and structure of environmental institutions to identify regulatory overlap or underlap; build the capacity of the public to engage thoughtfully and meaningfully with government and project proponents; prioritise protection of environmental defenders and whistleblowers; creation of environmental courts and tribunals, use administrative enforcement processes to handle minor offenses. The benefits of environmental rule of law extend far beyond the environmental sector: Protection of the environment, public health, human and constitutional rights; strengthening of rule of law more broadly; supporting sustainable development; contributing to peace and security. Therefore, it is a growing priority for all countries.

The rights people should be entitled to include:

[1]   The right to environmental information.
[2]   The right to participate in environmental decision-making.
[3]   The right to effective remedy.

Universal Rights Group’s Resource Paper: What are my rights?, “The right to environmental information”; “The right to participate in environmental decision-making”; “The right to effective remedy”, cite international and national laws/regulations/legal procedures/ legal and environmental instruments/policies. These also cite treaties/agreements/covenant/conventions on access to information, public participation in decision-making, access to justice in environmental matters, prior informed consent procedure for certain hazardous chemicals and pesticides in international trade, persistent organic pollutants, climate change, biological diversity, combating desertification, civil liability for oil pollution damage, the Law of the Sea, civil and political rights.

[To be concluded]

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Vol 54, No. 32, Feb 6 - 12, 2022