人权与环境保护在英国

 Evaluate the relevance for business of human rights provisions
   in the context of environment protection
  
  
  Contents
  
  
  I. Introduction
  II. Relationship between Human Rights and Environmental Protection
  III. Environmental Human Rights
  IV. Human Rights Approaches to Environmental Protection in Practice
  V. Advantages and Disadvantages of a Human Rights Approach
  VI. Conclusion
  
  
  I.Introduction
  
  The United Nations Universal Declaration of Human Rights does not mention pollution—environmental protection received scant attention in 1948. In those days the adverse impacts of environmental harm was not much felt by the people. The issue of environmental protection and human rights started from the UN Conference on Human Environment “Stockholm Declaration” in 1972, in which, principle 1 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”. Since the “Rio Declaration of Environment” in 1992, which lead to more important developments, the nexus “were cautious in accepting that international environmental policy had developed into a regime of international law”. A number of cases and development that happened in this field demonstrate the rising universal awareness of urgent action at the regional, national, and international.
  
  Recently, this issue is widely considered since the UK government published a White Paper, “bringing rights home”together with the Human Rights Bill. The Human Rights Act 1998 introduces provisions that touch most areas of private and business life and unquestionably has the potential to bring about fundamental changes for British people, who will then be able to assert and enforce their rights under the Convention through all the ordinary United Kingdom courts and tribunals, rather than relying solely on a belated remedy from the European Court of Human Rights in Strasbourg. This change will come at some practical cost. “Once the convention is incorporated, there will undoubtedly be a protracted period of uncertainty and a flurry of case law” .On the other hand, in the words of Lord Scarman, it may be little more than an opportunity “to freshen up the principles of common law” . Or the other, one must bear in mind the now notorious words of a senior Scottish judge, Lord McCluskey, who has cited the experience of the introduction of a similar Charter of Rights in Canada and the words of a Canadian senator that it will be “a field day for crackpots, a pain in the neck for judges and a gold mine for lawyers” . Against that background, this article attempts to address the link between human rights and the environmental protection, review the relative cases in practice, and try to evaluate the relevance for business of human right in the context of environmental protection.
  
  II. Relationship between Human Rights and Environmental Protection
  
  Generally speaking, the relationship between human rights and environmental protection can be considered as coherent, contrary, and interdependent. Firstly, it is coherent somewhat. There is an increasing tendency for environmentalists and human rights activists to work together toward common goals. Some international organizations such as Greenpeace and Amnesty International, are natural affinity, because “both aim to reduce the reserved domain of domestic jurisdiction protected under Article 2(7) of United Nations Charter’ . Similarly, some domestic groups are working together to restrain the exercise of unaccountable power by governments and private actors. Secondly, tensions exist. The basic discordant is that human rights are anthropocentric rights. Environmentalists may distrust the priority which activists are likely to accord to the human being over other species and ecological process. While, the human rights activists may criticize environmental movement disregarding immediate human needs in the quest to protect biota, finite natural resource, and the basic needs of future generations. Thirdly, the human rights and environmental protection are “interdependent, complementary, and indivisible”. As Michael Anderson stated, the interdependence argument obviously works in many circumstances, it sometimes serves as “a moral comforter which temporarily cloaks the extremely difficult questions which must be faced.”
  
  Lots of environmentalists and scholars have noticed, the precise relationship between human rights and environmental protection is far from clear. In Anderson’s article, he mentioned the relationship may be conceived in two main ways. First, “environmental protection may be cast as a means to the end of fulfilling human rights standards”. The reason is that “degraded physical environments contribute directly to infringements of the human rights to life, health, and livelihood, acts leading to environmental degradation may constitute an immediate violation of internationally recognized human rights”.And an effective environmental protection system would help “ensure the well-being of future generations as well as the survival of those persons, often including indigenous or economically marginalized groups, who depend immediately upon natural resources for their livelihoods” .
  
  A second approach reserves the one just described in that “the legal protection of human rights is an effective means to achieving the ends of conservation and environmental protection”.Since, if the human rights are fully realized, it will help build a more upstanding society and a political order, therefore claims for environmental protection are to be respected more easily. Hereby, a more ambitious view on this issue is given birth, which is that there should be an environmental right, which is an inalienable, “actual and independent human right to a satisfactory environment as legally enforceable right”. Arguably, as Anderson and DeMerieux both assert, it is no longer the impact of the environment on other human rights which the law’s focus on but the environment itself.
  
  III. Environmental Human Rights
  
  Nevertheless, do we really need to define new environmental rights, and what do we mean by an environmental right in the human rights context? Among the broad arguments, there are two main points of view. One is that owning a clean, viable and healthy environment should be new rights; the other view is that the existing rights, such as the right to life, have included environmental issues, it is not necessary to creative a new human right. It is complicated and difficult to define environmental rights by the need to make them operate in a legal context. Cook thinks “clearly an environmental right is one which involves the protection of an individual’s interest in the environment” , but what is the nature of that interest?
  
  The traditional human rights approach divides these rights into two different perspectives: a more human-centred perspective, whereby the state of the environmental is relevant in so far as it has a direct impact on human life, health and well being. Not only is this perspective human-centred, it tends to be focused on the welfare of particular individuals as opposed to the collective welfare of humans in general. This approach can be found for example in the jurisprudence of the European Convention for the Protection of Human Rights and Fundamental Freedoms(ECHR). The new environmental rights approach derives from a broader environmental perspective, whereby individuals are endowed with rights to assert and secure environmental interests but where, in order for those interests to be legally recognised, it is not necessary to “demonstrate a direct impact on the welfare of a particular individual or even on human welfare more generally” . By this approach, environmental rights have more to do with “achieving socially agreed environmental objectives than providing specific guarantees to particular individuals”.No doubt, the latter approach may be exercised in order to protect more general concerns with issues such as climate change or non-human welfare related issues, such as the conservation of species and habitats. The instruments and laws which protect these environmental interests have tended traditionally to focus on regulatory enforcement mechanisms rather than individual right, but recent trends have led to the recognition of certain individual rights in the environmental sphere. These end to be procedural rights—the right of individuals to participate in decision-making—but may also include an expansion of more substantive rights, to compensation for losses caused by environmental damage for example.
  
  There is obviously a considerable overlap between the human rights based approach and the environmental rights approach, for example, severe pollution may pose a direct threat to human health as well as to the wider environment. However, they are not co-extensive, there are many situations where demonstrable harm to the environment, the loss of a species or habitat, or an incidence of pollution away from human settlement, does not present immediate consequences for human welfare. In practice, though using human rights approaches to solve environmental problems still prevails, more and more governments are beginning to consider or introduce environmental rights.
  
  Looking back at these complicate relationships between human rights and environmental protection, questions have to be addressed. Why should environmental matters be approached through human rights at all? Which human rights approaches are best?
  
  IV. Human Rights Approaches to Environmental Protection in Practice
  
  Anderson summarized three main human rights approaches to environmental protection: first, mobilizing existing rights to achieve environmental ends; secondly, reinterpreting existing rights to include environmental concerns; and thirdly, creating new rights of an explicitly environmental character . This system is based on the idea that fully existing human rights may offer a great deal to global and local environmental protection, however, they will fall short of meeting desired ends. To provide adequate protection of environmental goods, a new environmental human rights is called up, which should include both procedural and substantive in character.
  
  Existing rights are usually distinguished as (a) civil and political and (b) economic, social and cultural rights and (c) the right of self-determine. Civil and political rights provide for moral and political order; they include the right to life, equality, political participation and association and are based on the Universal Declaration of Human Rights. They can protect civil mobilisation around environmental protection and equity. Economic, social and cultural rights are often referred to as ‘second generation’ rights. They provide standards for individual’s well being. The International Covenant on Economics, Social and Cultural Rights (1966) provides an example. It includes, among other things, the right to health, which recognizes the need for environmental improvement (Article 12) . The right to self-determination would help to solve problems on sovereignty and ethnically distinct groups. The following provides some cases in the EU to examine how three approaches work in practice.
  
  There is plenty of scope for seeking to protect certain environmental rights and interests under the ECHR/HRA. To sum up, the rights of interest divide between the substantive Articles 2(life), 8 (home, private and family life) and Article 1 Protocol 1(peaceful enjoyment of possessions) set out in the Convention, and the procedural guarantees of Article 6(1)(fair hearing) and 14 (no discrimination).
  
  A. Article 8 (the right for home, private and family life)
  
  Article 8 of the ECHR has been invoked in most of the cases involving environmental concerns in situations ranging from severe chemical pollution, to noise pollution caused by aircraft, to the risks posed by the operation of nuclear power stations or the transport of nuclear material. In these types of cases, complaints are based on the right to respect for one’s home and private and family life. It should be noted that Article 8 is the only Convention right to refer expressly to the “economic well-being of the country” as a grounds for interference. “In the environmental context, this raises the question as to whether the standard drawing on the concept has developed in international environmental law”.
  
  The number one case is Lopez Ostra v Spai.Lopez Ostra was subjected to violation of human rights by Spain by allowing to continue a noxious leather industry to operate in the locality in which she resided with her family. The industry had a waste treatment plant very close to Ms.Ostra. Her daughter fell ill due to the foul smell emanating from the tanks of the waste treatment plant. She and the other nearby residents were shifted by the municipality to another place. Even after their return, the municipality did not take care to cause the noxious activities of the leather industry to be stopped. Her actions against the leather factory in the Constitutional court did not succeed. She took the mater to the Commission on the grounds that her rights of protection of private life and family life (Art.8) and prohibition against torture and inhuman and degrading treatment(Art.3) were violated. The commission rejected the complaint under Art.3 but allowed it under Art.8 and referred the case to the Court. The Court found that Spain had violated Art.8 of the Convention. It held: “despite the margin of appreciation left to the respondent State, the Court considers that the State did not succeed in striking a fair balance between the interest of the town’s economic well-being that of having a waste treatment plant and the applicant’s effective enjoyment of her right to respect her home and her private and family life”. Spain was ordered to pay 4 million Pesetas in damages plus costs and expenses.
  
  The case of Lopez Ostra followed a line of earlier cases concerned with noise pollution. In Arrondelle v United Kingdom the applicant lived between an airport runway and a road. She claimed her health had been affected by the noise. The case was settled but the Commission was prepared to accept that Article 8 was applicable. In the case of Rayner v United kingdom, the applicant complained abut noise from aircraft at Heathrow. The Commission considered that noise nuisance can undoubtedly affect the physical well-being of a person and thereby interfere with his private life. However, it dismissed the complaint because although it found that the individual’s private life had been interfered with, it took the view that the running of Heathrow Airport was justified under the Article 8 (2) as necessary for the economic well-being of the country.
  
  Guerra v Italy is another significant case, which was held by the E.C.H.R that the local government’s failure to give the local people “essential information that would have entitled them to assess the risks they and exposed in the event of an accident at the factory” amounted to a breach of Article 8, and the applicants each received 10m Lire. This case is decided by a grand chamber of 20 judges, which is the forum reserved for the most important cases. Not only does it demonstrate the Court’s increasing willingness to examine environmental complaints, also demonstrate that States can be made to account for pollution caused by private sector companies as well as for defaults by state agencies.
  
  There are a number of cases which tried to apply Article 8, but only Lopez Ostra v Spain and Guerra and Others v Italy where the applicant has succeeded. The limitation of Article 8 is clear. First, the courts have to balance the interests of the individual and the community as a whole, and that there was a certain “margin of appreciation”for the state. The court has tended to grant States a considerable amount of discretion in balancing the competing interests. Second, the scope of it is limited. It is only interference with the quality of home life, interference with wider lifestyle has not generally been recognized. Third, Article 8 is centred on interference with certain types of human amenity. “Whilst people may be distressed by degradation of the natural environment, effects on other people or on flora, fauna or important natural features, such distress is not within the ambit of Article 8” .
  
  B. Article 2 (the right to life)
  
  Article 2 requires a State to take steps to safeguard life which are appropriate to the general situation. In practice, both the Commission and the Court have appeared reluctant to second guess the type of measures which may be required in the area of environmental safety, although there have been some suggestions that the approach should evolve towards on which is more receptive to the threats to life posed by environmental hazards.
  
  In L, M and R v. Switzerland, the applicants complained that the transportation of nuclear waste, specifically the threat of a transport accident, threatened their right to life. The Commission declared that it was satisfied that the Swiss authorities had set up sufficiently precautionary measures to comply with their obligations under Article 2 and were not required to provide additional individual protection for those living in the vicinity of areas where transport was conducted.
  
  In Guerra, where the Court had found “a violation of Article 8 in relation to the failure to provide essential information about risks, it was held that it was unnecessary to consider the claim in relation to Article 2” . This is perhaps an indication of the reluctance of the Court to consider Article 2 in the environmental context. By contrast, in their dissenting judgments, Judges Walsh and Jambrek heldthat Article 2 was relevant. In the words of Judge Jambrek “ it may…be time for the Court’s case law on Article 2…to start evolving, to develop the respective implied rights, articulate situations of real and serious risk to life, or different aspects of the right of life.”
  
  C. Article 1 of Protocol 1(the right to peaceful enjoyment of possessions)
  
  Article 1 of Protocol 1 guarantees the right to peaceful enjoyment of possessions and outlines circumstances when interference with the right may be justified, as for example in the public interest and subject to conditions provided for by law.
  
  The Commission has considered that every kind of negative effect caused by environmental nuisances could indirectly amount to interference with the right to peaceful possession of property.In Rayner, the Court accepted that noise could affect the value of the property and therefore amount to a partial taking of the property. However, on the evidence this had not occurred.
  
  Protection of the environment is accepted as coming within the “general interest” referred to in paragraph 2 which may entitle the State to interfere with the enjoyment of property. In Fredin v Swedenthe applicant had obtained a permit to exploit a grave pit. An amendment to the law on nature conversation subsequently authorized the revocation of such permits. The Court was prepared to find that nature conservation could justify State interference with the right of peaceful possession.
  
  D. Article 6 (the right to a fair trial)
  
  The right to a fair trial provides procedural rather than substantive protection. Commentators are divided as to whether protection of the environment is better achieved through the use of substantive rights such as the right to life or respect for home life or through procedural protection provided by the right to a fair trail and the right to information. Dicey was clear in his view that a “practical procedure is worth a thousand pious pronouncements of principle”.
  
  The right to a fair trial applies to civil as well as criminal trials. The reference to “civil rights and obligations” has been interpreted by the Court to mean private law rights and obligations, including property rights and the exercise of business and commercial activities.
  
  In Zander v Swedenthe applicant was unable to challenge the decision of a licensing authority to allow a company to dump waste on a tip without requiring the company concerned to take precautionary measures to avoid pollution of the applicant’s drinking water. The Court found this to be a breach of Article 6. In Benthem v The Netherlandsthe applicant applied for a licence to operate an installation for the delivery of liquid petroleum gas for motor vehicles. The licence was necessary to constuct installations that might be a source of danger or disturbance to surroundings. The licence was granted by local authorities but was then quashed by a national decree. The applicant alleged that the dispute had not been heard by an independent and impartial tribunal. Article 6 was held to be applicable.
  
  In contrast, those who object to proposed action by the State to protect the environment also have the right to challenge such action before a tribunal. In Fredina,a landowner was unable to obtain judical review of the authority’s decision to prohibit him from extracting gravel. The Court held that this amounted to a breach of Article 6.
  
  E. Article 10 (the right to freedom of expression)
  
  Public access to information on the environment is recognized as a key aspect of environmental protection. Article 10 includes the right to receive information. This has been interpreted as a negative obligation on the State not to impede an individual from obtaining access to information requested. It has not however, extended to a positive obligation on the state to provide information. This was confirmed in Guerra v Italy which, as referred to above, concerned the failure by the Italian authorities to provide the local population with information about the risks from a nearby chemical factory. The State was found not to be in breach of Article 10 on the basis that the freedom to receive information could not be construed a imposing on a state positive obligations to collect and disseminate information of its own motion . Article 10 may, however, be useful to environmental protestors, though again the courts are likely to seek to hold a balance between freedom of expression and the preservation of public order .
  
  V. Advantages and Disadvantages of a Human Rights Approach
  
  As aforementioned cases law have shown, the human rights approaches to solve environmental problems may work sometimes. What are the advantages and disadvantages of using a human rights approach rather than an approach based in regulation, criminal law, or the law of tort?
  
  The advantages of a human rights approach might be based on these reasons. First, as Anderson argued, a human rights approach is a strong claim, it is “a claim to an absolute entitlement theoretically immune to the lobbying and trade-offs which characterize bureaucratic decision-making” . Second, the human right approach can provide a procedural access to justice in a way that bureaucratic regulation, or tort law, simply cannot. “A robust environmental right can mobilize redress where other remedies have failed” . This is particularly important in cases like the Asian Rare Earth litigation in Malaysia, where proof of causation and other technical barriers make tort law ineffective. It was also important in the Indian context, where procedural simplicity has made environmental rights highly attractive to aggrieved parties. An environmental right may serve as the ultimate ‘safety net’ to catch legitimate claims which have fallen through the procedural cracks of public and private law. Thirdly, a human rights approach may “stimulate concomitant political activism on environmental issues” . Concerned citizens and NGOs are more likely to rally around a general statement of right than a highly technical, bureaucratic regulation expressed in legalese. Fourthly, at present, environment damage is unequally distributed at both national and international levels, a human rights approach can provide the conceptual link to bring local, national, and international issues within the same frame of legal judgment. Fifthly, “a general expression of right can be interpreted creatively as issues and contexts change” . This is evident in the Indian jurisprudence, where the right to a healthy environment held to be implicit in the right to life has been given more precise definition on a case-by-case basis as specific disputes have come before the courts. Thus, definitions and trade-offs evolve gradually in the light of experience rather than needing to be defined comprehensively and rigidly in a single piece of regulatory legislation.
  
  On the other hand, there are inherent limitations in a human rights approach to environmental protection. First, human rights only protect individuals. Impacts on people are an important, yet relatively small area of environmental protection. Air pollution, water pollution and others can make the sky become grey, water become black, plants and animals die. Maybe they do not directly interfere with human rights, but they are tightly concerned the whole circumstances. Second, the interests of the environment and of people do not necessarily coincide. Human rights may in fact cause a depletion of natural resources, and their behavior is not necessarily compatible with the aim of long-term ecological integrity. Third, human rights only protect the present generation. They cannot easily protect future generations or give effect to the aims of sustainable development, which require us to preserve the ability of future generations to enjoy the natural resources available to us. Finally, it is difficult to address the complex and often technical issues of environmental management by a simple right. Environmental protection, in other decision-making and implementation, requires “a legal language capable of incorporating highly technical specifications, distinguishing among industrial process, evaluating elusive causal relationships, and protecting complicated biological and ecological systems” . In conclusion, a simple language of rights can not resolve all the issues relatived to environmental protection.
  
  VI.Conclusion
  
  As European Court of Human Right recognise “ that in today’s society the protection of the environment is an increasing important consideration”,more and more environmental protection cases emerge by human rights approach. Although as the cases before mentioned, they rarely succeed, the issue between human rights approach and environmental protection does lead to a wide consideration. The awareness of this issue already exists on different levels. One important level is that whether the human rights approach is an effective way to resolve the environmental problems, which also is aim discussion of this essay. In my opinion, the human rights approach at least contributes in two ways. One is that it is to ensure any person, individual or corporate, can complain about the acts of the state, when the conflicts happen between individuals and the states. As we know, individuals are often on a sticky wicket to be against the government, so the human rights approach does undoubtedly present challenges to governments, statutory bodies, judges, lawyers and at least private citizens. The other way is that the human right approach provides a practical procedure. An effective procedure is so important that “it is worth a thousand pious pronouncements of principle” .
  
  The definition of environmental human rights is still missing. All the cases included in this issue underline the necessity, but the final definition especially for the substantive rights does not exist yet. To go further it is important to make clear, what exactly is meant by a clean and healthy environment because the term seams very extensive, and to define a common goal with a strategy how to reach it. If very real problems of theory and practice remain, they should “stimulate careful analysis and jurisprudential innovation rather than intellectual surrender” .