1

Introduction
Environmental rights may be defined as basic substantive entitlements... to an
environment beneficial to human life and well-being... of existing and future
generations.
1

The right to the environment is usually classified as peoples or solidarity rights (so-
called green rights); as opposed to political and civil rights and socio-economic
rights. Green rights also include the right to peace, development, self-determination
and a healthy environment. It has been said that the enforcement of such rights is
difficult in practice.
This essay will address the following aspects of the linkages between human rights
and environmental protection, as well as critically analyse the discourse around
these linkages: How environmental degradation can impact and does impact on
human rights; the distinction between derivative environmental rights and a free-
standing right to environment; and finally, how the existing human rights framework
can be used to further environmental protection.
The impact of environmental degradation on human rights:
The environment is by definition, the natural and man-made surroundings in which
human beings not only exist, but depend upon for sustenance.
2
When the
environment is polluted or degraded, this damage can have a significant impact on
the quality of life of the affected human beings. It is not only the civil right to life that
is affected, but also socio-economic rights, such as the right to health, to property, to
safe potable water, etc.
A study done in 2007 estimated that about 40% of deaths worldwide are caused by
water, soil and air pollution.
3
More than 1.2 billion people lack access to clean water,
and water-borne infections account for 80% of all infectious diseases. In most of

1
Du Plessis A Fulfilment of South Africas Constitutional Environmental Right in the Local
Government Sphere (published LLD thesis, North West University, (2008) 17
2
S 1, National Environmental Management Act, 107 of 1998
3
Pimentel D Ecology of Increasing Diseases: Population Growth and Environmental Degradation
2007 Human Ecology 653-4
2

tropical Africa, malaria is endemic, killing a child every minute.
4
Malaria is a water-
related health concern, as polluted water is a breeding ground for the parasites.
Air pollutants are responsible for about 3 million annual deaths worldwide through
respiratory infections.
5

It is important to note that the effects of environmental degradation are not
distributed equally. It has been shown that environmental hazards have a greater
impact on lower income households or societies because they cannot afford to
breathe cleaner air or to afford potable drinking water, access to medical care and
the like.
6
At a global level, poorer countries bear the brunt of the effects of pollution
and environmental degradation because they lack the infrastructure and financial
muscle to mitigate or adapt to the adverse changes in the environment.
These dire statistics beg the question: is there a right to the environment in
international law and, if so how is it enforced? Are environmental rights merely
recognised within a broader framework of existing human rights, or does an
independent environmental right exist?
The answers to these questions are not straightforward by any means. The
approaches to the protection of the environment and human rights are varied and the
subject of much debate. Some writers argue that environmental rights are derivative
in nature; whereas others take the view that a free-standing environmental right
ought to exist in international law.
Derivative environmental rights versus the right to environment:
Derivative environmental rights refer to an approach which views environmental
rights as having no expression in law, outside of other entrenched rights. They are
derived from other existing treaty rights, such as life, health or property.
7
Human

4
World Health Organisation http://www.who.int/mediacentre/factsheets/fs094/en/index.html Accessed
on 25 March 2013
5
Pimentel D (2007) 655
6
Agyeman J, Bullard RD & Evans B (2002) Exploring the Nexus: Bringing together sustainability,
environmental justice and equity 6 (1) Space & Polity 78
7
Birnie PW & Boyle AE International Law and the Environment (1992) at 192
3

rights are expanded to include an environmental dimension whereby degradation of
the environment amounts to a violation of the right.
8

This approach is anthropocentric in nature. Anthropocentrism is a human-centred
approach to environmental protection which holds that the natural environment
should be protected primarily for humans well-being. Humans depend fundamentally
on the natural environment, and therefore, environmental rights should be afforded
to them. This approach is supported by writers such as Gormley and van Reenen
who argue that the ultimate goal of environmental protection is the enhancement of
human life.
9

This approach is widely favoured in international law. Principle 1 of the Stockholm
Declaration of 1972 states: Man has a fundamental right to... an environment where
equality permits a life of dignity and well-being...
10
In 1990 the UN General
Assembly stated in a Resolution that "all individuals are entitled to live in an
environment adequate for their health and well-being"
11

The anthropocentric approach is compatible with the principle of sustainable
development, as they both put an emphasis on the needs of human beings in
present and future generations. Du Plessis also remarks that principles such as
intergenerational equity are best served by a human-centred approach to
environmental protection.
12

However, this approach could be criticised for ignoring the fact that human beings
must protect the environment because we have a moral obligation to do so. A strictly
anthropocentric approach runs the risk of sacrificing the natural environment for the
sake of human progress.
A differing approach to derivative environmental rights views a right to the
environment as an independent right. This approach has been voiced in some
international legal principles, such as the Proposed Legal Principles for

8
Kiss A & Shelton D International Environmental Law 3ed (2004) at 663.
9
Van Reenen TP (1997) Constitutional protection of the environment: Fundamental (human) right or
principle of state policy? SAJELP 275
10
Declaration of the United Nations on the Human Environment (1972) 11 ILM 1416, Preamble and
Principle 1.
11
UNGA Resolution 45/94, 14 December 1990.
12
Du Plessis (2008) 21.
4

Environmental Protection and Sustainable Development which provides that all
human beings have the fundamental right to an environment adequate for their
health and well-being.
13
The Draft Principles on Human Rights and the
Environment, adopted by the UN Commission on Human Rights provides that all
human beings have the right to a secure, healthy and ecologically sound
environment.
14

The free-standing environmental rights approach is a reflection of the eco-centric
views of some scholars. The eco-centric approach, as the antithesis of the
anthropocentric approach, puts forward two views: that the environment itself should
be afforded rights a view forwarded by Stone in his seminal essay of 1972
15
and
that existing environmental (human) rights should be interpreted not just with regard
to human beings, but also with regard to the environments intrinsic worth.
16

Stone advocated the affording of legal rights to forests, oceans, rivers and so-called
natural objects in the environment indeed to the environment as a whole.
17

However, this approach has not found much approval in international law and, as a
result, there is no independent right to the environment recognised in customary
international law as yet.
Bosselmann cites as the reason for this international reluctance the fact that a right
to the environment is too vague and general in its content, scope and
enforceability.
18

Such a right is easier to enforce at national level and indeed the right to the
environment has emerged in a number of national constitutions. The Brazilian
Constitution, for example, states that everybody has the right to an ecologically

13
See Proposed Legal Principles for Environmental Protection and Sustainable Development adopted
by the WCED Experts Group on Environmental Law, reproduced in WCED Our common future (1987)
348.
14
See Principle 1, Draft Principles on Human Rights and the Environment in UN Sub-commission on
Prevention of Discrimination and Protection of Minorities Human rights and the environment, Final
Report of the Special Rapporteur, UN Doc E/CN.4/Sub 2/1994 19.
15
Stone C Should Trees Have Standing? Towards Legal Rights for Natural Objects 1972 Southern
California Law Review 450-501
16
Bosselmann K Human rights and the Environment: Redefining fundamental principles 2003
Yearbook of Human Rights and Environment 1-41
17
Bodansky D et al (eds) The Oxford Handbook of International Environmental Law (2007) 292-311
18
Bosselmann K (2003) 11
5

balanced environment, an asset for common use by the people, and essential to the
wholesome quality of life.
19

In the South African context, the 1996 Constitution seems to incorporate both
anthropocentric and eco-centric features. Section 24 of the Constitution guarantees
an explicit right to the environment. It states that everyone has a right to an
environment that is not harmful to their health or well being; and to have the
environment protected, for the benefit of present and future generations, through
reasonable legislative and other measures...
20

The wording used is undeniably anthropocentric: Everyone has the right to an
environment that is not harmful to their health or well being...
21
It explicitly refers to
present and future generations of people as well as to the notion of sustainable
development.
The interpretation of section 24, as seen through the section 2 principles of the
National Environmental Management Act (NEMA), furthers the view that the natural
environment is an instrument of value to the people of South Africa. Some of the
more anthropocentric principles in NEMA include inter- and intra-generational equity,
environmental justice and sustainable development.
22

The eco-centric approach may not be popular at the international level, but it could
have a positive impact on how seriously the international community reacts to issues
such as climate change. Bosselmann rightly points out that a shift from a purely
human-centred perspective on environment to an ecological perspective may help us
to realise that we have a moral obligation towards the natural environment.
23

Interestingly, the African Charter on Human and Peoples Rights (ACHPR) was the
first international law instrument to have explicitly recognised a right to a quality
environment.
24
Article 24 of the ACHPR states that: all peoples shall have the right
to a generally satisfactory environment favourable to their development.
25
Article 24

19
Article 225 of Chapter VI
20
S 24, Constitution of the Republic of South Africa 1996.
21
S 24, Constitution of the Republic of South Africa 1996.
22
S 2(4) National Environmental Management Act 107 of 1998.
23
Bosselmann K (2003) 20
24
African (Banjul) Charter on Human and Peoples Rights (1981) (hereinafter ACHPR)
25
Article 24 ACHPR
6

read together with article 26, places a duty on State parties to establish and improve
national institutions which promote and protect the right to the environment.
A good illustration of the implementation of Article 24 is the case of Social and
Economic Rights Action Center for Economic and Social Rights v Nigeria (the
SERAC case) wherein the African Commission on Human and Peoples Rights held
that states have a duty to promote, protect and fulfil their civil and socio-economic
obligations.
26

It stated that States are required to take reasonable and other measures to prevent
pollution and ecological degradation, to promote conservation and to secure an
ecologically sustainable development and use of natural resources.
27

In a 1994 report to the UN Sub-commission on Prevention of Discrimination and
Protection of Minorities, Ms Fatma Ksentini recognised the reciprocal link between
protection of human rights and environmental protection. She advocated the
recognition of the right to a healthy environment which makes it possible to go
beyond the reductionist concepts of mankind first or ecology first and achieve the
common objectives of development and environmental protection.
28

It is submitted that her views are agreeable. Irrespective of which approach one
takes, the objective remains the same sustainable development and ecological
protection and it is this objective which ought to drive the discourse on the linkages
between human rights and environmental protection.
Human rights framework as a tool to further environmental protection:
Although several international instruments have recognised the link between human
rights and environmental protection, there is still a lot that can be done to use the
human rights framework as a tool to further environmental protection.
Given the international communitys reluctance to recognise an established
independent right to the environment; there ought to be a legal and moral duty upon

26
Social and Economic Rights Action Center for Economic and Social Rights v Nigeria, African
Commission on Human and Peoples Rights Comm No 155/96 (2001)
27
Social and Economic Rights Action Center for Economic and Social Rights v Nigeria African
Commission on Human and Peoples Rights Comm No 155/96 (2001) par 51
28
Review of Further DeveIoprnents in Fields with which the Sub-Commission Has Been Concerned,
Human Right and the Environment: Final Report Prepared by Mi. Fatna Zohra Ksentini, Special
Rapporteur, UN ESCOR, 46th Sess., UN Doc. E/CN.4/Sub.2/1994/9 [Ksentini Final Report].
7

States to develop the human rights discourse surrounding the environment beyond
its recognition as a green right.
Boyle identifies a number of ways in which the issue of environmental protection can
add to the body of human rights law.
29
First, he suggests that procedural rights
should be elaborated upon to facilitate the implementation of and protection of the
rights to the environment. In South Africa, for example, the National Environmental
Management Act (NEMA) provides extensive procedures for integrated
environmental management,
30
including public participation and the right to
environmental information.
31

Conclusion
Human rights and the environment share an inextricable reciprocal link.
Environmental degradation continues to have adverse impacts on the quality of
human life worldwide, and at the same time, human activities are the major cause of
environmental pollution. Despite international reluctance to expressly recognise a
right to the environment, this right has been given expression through several human
rights. At regional and national levels, the right to a quality environment has indeed
been realised, for example through the South African Constitution.









29
Boyle A Human Rights and the Environment: Where Next? (2012) 23 European Journal of
International Law 616
30
See generally Chapter 5 NEMA
31
Sections 23(2) (d) and 31 NEMA respectively
8

BIBLIOGRAPHY
LEGISLATION
Constitution of the Republic of South Africa, 1996

National Environmental Management Act, 107 of 1998

CASE LAW
Social and Economic Rights Action Center for Economic and Social Rights v Nigeria,
African Commission on Human and Peoples Rights Comm No 155/96 (2001)

BOOKS
Du Plessis A Fulfilment of South Africas Constitutional Environmental Right in the
Local Government Sphere (published LLD thesis, North West University, (2008)

Birnie PW & Boyle AE International Law and the Environment 2 ed (Oxford
University Press 2002)
Kiss A & Shelton D International Environmental Law 3ed (Transnational Publishers
New York 2004)

Bodansky D et al (eds) The Oxford Handbook of International Environmental Law
(2007) 292-311


JOURNAL ARTICLES
Agyeman J, Bullard RD & Evans B (2002) Exploring the Nexus: Bringing together
sustainability, environmental justice and equity 6 (1) Space & Polity 78

Bosselmann K Human rights and the Environment: Redefining fundamental
principles 2003 Yearbook of Human Rights and Environment 1-41

Boyle A Human Rights and the Environment: Where Next? (2012) 23 European
Journal of International Law 616

9

Pimentel D Ecology of Increasing Diseases: Population Growth and Environmental
Degradation 2007 Human Ecology 653-668

Stone C Should Trees Have Standing? Towards Legal Rights for Natural Objects
1972 Southern California Law Review 450-501

Van Reenen TP (1997) Constitutional protection of the environment: Fundamental
(human) right or principle of state policy? SAJELP 275


TREATIES, CONVENTIONS & RESOLUTIONS
African (Banjul) Charter on Human and Peoples Rights (1981) (hereinafter ACHPR)

Declaration of the United Nations on the Human Environment (1972) 11 ILM 1416.

Proposed Legal Principles for Environmental Protection and Sustainable
Development adopted by the WCED Experts Group on Environmental Law,
reproduced in WCED Our common future (1987).

Draft Principles on Human Rights and the Environment in UN Sub-commission on
Prevention of Discrimination and Protection of Minorities Human rights and the
environment, Final Report of the Special Rapporteur, UN Doc E/CN.4/Sub 2/1994.
Review of Further DeveIoprnents in Fields with which the Sub-Commission Has
Been Concerned, Human Right and the Environment: Final Report Prepared by Ms.
Fatna Zohra Ksentini, Special Rapporteur, UN ESCOR, 46th Sess., UN Doc.
E/CN.4/Sub.2/1994/9 [Ksentini Final Report].

INTERNET SOURCES
World Health Organisation
http://www.who.int/mediacentre/factsheets/fs094/en/index.html Accessed on 25
March 2013