What do you think when you hear about climate change? Images of massive droughts, destructives floods and glaciers melting come to our minds. However, there’s still a tendency in some communities to not associate the climate crisis we are facing with a deprivation of human rights. We all know that human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status.[1] But, what has to do air pollution or even illegal hunting practices with the violation of fundamental basic rights? Unfortunately, in most of the countries, the international fora and even the mass media, there’s little or no linkage between environmental issues and human rights, so for the majority of our societies. Shall we consider environmental rights as human rights? The answer is yes and here you would know why it’s high time to deepen our understanding of what are those environmental rights.

First of all, one could say that all peoples shall have the right to a general satisfactory environment favorable to their development[2]. This is an affirmation that goes well with UN statement of how “all human beings depend on the environment in which we live.  A safe, clean, healthy and sustainable environment is integral to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation. Without a healthy environment, we are unable to fulfill our aspirations or even live at a level commensurate with minimum standards of human dignity”.[3] But, these allegations are still empty in the eyes of most of the members of the international community, which has still not given full recognition to the human right to a healthy environment.[4]  

The simple idea of “protecting our common environment” expressed in multiple international instruments as in the United Nations Millennium Declaration[5] or the transcendent role of a safe and clean environment to the right to life, the right to health, the right to development, and the right to future generations given by Stockholm Declaration[6] adopted in 1972, Rio Declaration[7] (1992) and Johannesburg Declaration[8] (2002) don’t seem enough for the global experts. At first glance, expressing that environmental rights are necessary to fulfill human rights seems true. But, is the same calling them a complementary part of human rights as considering them equals to human rights? Some would argue that not even the United Nations present them as equals, the continuous petitions for global recognition of the right to safe and clean environment to complement and reinforce the national and regional legal framework[9] and even to anchor the work of environmental defenders[10] seems to never end. However much importance is given to the environment, in relation subsistence and survival of the humankind, little or no progress is made by the international community to reposition the environmental right in the international law hierarchy.

Despite of the lack of universal consensus for an agreement that protects the environment as a human right, there are some Nations that are part of an avant-garde green movement of countries, which has expanded their own understanding of last decade trending topic. Colombian Constitutional Tribunal in the Case C-671/01 (2000) stated that “the right to environment cannot be separated by the right to life and health of the people […] it is a fundamental right for the existence of all humankind”[11], now it’s the time to remember that the right to life[12] and the right to health[13] has been universally recognized and are protected under several legal for a and international instruments. At the same wavelength  the Indian Supreme Court has make the environmental right an undividable part of the right to life stated in Shantisar Builders v. Narayanan Khimahal Totame Case (1990) that the right to life “consist of the right to food, clothing, decent environment and reasonable accommodation” [14] and in Virendra Gaur & Ors v. State of Haryana and Ors Case (1994) the same Court explained how “life is consistent with the protection and preservation of environment, ecological balance [...]”[15]. In plain English, having not fulfilled one’s right to safe and clean environment is like being deprived of the right to health and life, and “life meant something more than mere animal existence and the inhibition against its deprivation extend to all limbs and faculties in which life could be enjoyed”.[16]

On the other hand, we must not forget about the right of next generations. Not only does this right constitute an international principle with explicit implications on the environmental rights, but also does it come with a top hierarchic status. The principle is well-known as Common Heritage of Mankind (CHM), an ethical concept and a general concept of international law, which establishes that some localities belong to all humanity and that their resources are available for everyone’s use and benefit, taking into account future generations and the needs of developing countries.[17] It has some core elements to be considered:

§  CHM extends to all natural and cultural resources, wherever located, that are internationally important for the well-being of future generations,[18] ranging from archeological places to islands, biosphere reserves, Antarctica itself and food resources;

§  principle of non-appropriation, no state or person can own common heritage spaces or resources and when CHM applies to areas and resources within national jurisdiction, exercise of sovereignty is subject to certain responsibilities to protect the common good;

§  it shall be use out in accordance with a system of cooperative management for the benefit of all humankind, creating a type of trustee relationship for explicit protection of the interests of humanity, rather than the interests of particular states or private entities;

§  CHM shall be reserve for peaceful purposes;

§  CHM shall be transmitted to future generations in substantially unimpaired condition (protection of ecological integrity and inter-generational equity between present and future generations of humans).

The spirit of this principle has been embraced by some of the most celebrated international conventions, including: the Convention for the Protection of the World Cultural and Natural Heritage,[19] the Earth Charter,[20] the Convention on Biological Diversity,[21] the United Nations Framework Convention on Climate Change,[22] among others. The protection of future generations has even made an appearance in the International Court of Justice Advisory Opinion of 1996 Legality of the Threat or Use of Nuclear Weapons[23] where the court stated how the nuclear weapons would be a serious danger to future generations, in respect of the damage they could cause to the future environment, food and marine ecosystem. But, is it just an international law principle or is so much more? To answer this, remembering the negotiation process of the UNCLOS III results as a must. During the process the G77 claimed that the principles of common heritage of mankind, as proclaimed by the the 1970 UNGA resolution on the seabed, were principles of jus cogens,[24] being a customary rule which has the force of peremptory norm, then it would follow that unilateral legislation and limited were agreements were illegal and were, therefore, violations of this principle.[25]

Following this line of argumentation, one would without doubting conclude that the environmental rights are human rights. Given that, the weight carried by the right to a safe and clean environment is due to its unparallel effects on life and health, not only for present generations, but also for those to come. Furthermore, the violation of the peoples’ right to environment implicates the violation of an erga omnes obligation of States and a peremptory norm. However, before the contradictions surrounding the international community, the skepticism about the International Law system against the non-intervention principle, the state sovereignty over resources and the negligence before the actions of private counterparts, there’s a need for further development of international instruments that establish the environmental rights as human rights to enhance people rights.