Human Rights and the Environment
The link between environmental rights and human rights isn't always made. Yet most people now accept that human health and survival is threatened by ecological problems like air pollution, deforestation, water shortage and of course climate change. In this sense a clean and healthy environment is essential for the effective protection of human rights.
For example the right to food, water and a livelihood is threatened by the water shortages in the Murray Darling Basin; the right of indigenous communities to practice their culture can be undermined by invasive and destructive mining activities; the right to life, health and an adequate standard of living has been breached in the devastating Victorian bushfires that are commonly accepted to have been caused at least in part by climate change.
Some commentators believe that ‘first generation’ rights (civil and political) and ‘second generation’ rights (economic, social and cultural) should be distinguished from ‘third generation’ rights (environmental, development, intergenerational equity, etc).
But the international human rights community has already started to make the connection between human rights and environmental rights, and has called on Australia to make this link too. Recently the Committee on Economic, Social and Cultural Rights, in its Concluding Observations on Australia, recommended that Australia take urgent action on the human rights implications of climate change, saying:
“the Committee is concerned at the negative impact of climate change on the right to an adequate standard of living, including on the right to food and the right to water, affecting in particular indigenous peoples, …”.
Recognising the importance of environmental rights could be good for the protection of human rights. Correspondingly, recognising the importance of human rights could be good for the protection of environmental rights. For example, a human rights framework could:
- improve access to justice for public interest and low income groups in environmental litigation. This could be achieved by abolishing adverse costs orders in public interest litigation, expanding standing rights and increasing funding of NGOs, including environmental NGOs;
- expanding the role of human rights bodies including the Australian Human Rights Commission; and
- providing greater and more widespread education, including of community groups and public interest organisations in relation to their human and environmental rights and responsibilities.
While all of these measures are worthwhile, it is arguable that the only way to properly and consistently protect human rights, including environmental rights, is to introduce a legislatively enforceable Human Rights Act. Victoria and the Australian Capital Territory already have State-based human rights legislation. Because they cover civil and political rights only, the ability to draw on them for the protection of environmental rights are more limited, though certainly not out of reach (for example, the Victorian Charter of Human Rights and Responsibilities Act has started to be engaged in the context of property rights, and in future may be considered in the context of the right to life or privacy.
The idea of a Human Rights Act at a federal level has been the subject of discussion at the National Human Rights Consultation that was held across the first half of 2009.
A national Human Rights Act might enshrine Australia's existing international rights, including those in the International Covenant of Civil and Political Rights (the right to life, the right to freedom of speech, etc) and the International Covenant on Economic, Social and Cultural Rights (the right to health, an adequate standard of living, water, food, and culture, etc). Using this framework (depending on how flexible the courts were willing to be), environmental rights could be protected indirectly.
Alternatively, a Human Rights Act could contain a stand-alone right to a clean, healthy and sustainable environment. A large number of countries, from France to East Timor, have already taken this approach.
An Act could also acknowledge the principle of ‘intergenerational equity’, a concept that recognises that rights must be protected not just for the present generation, but also for future generations.
Third generation rights, especially environmental rights, have an important role to play in the debate around how best to develop a culture of human rights in Australia. The National Human Rights consultation presents a unique opportunity to implement a comprehensive framework that reflects international developments and meets the contemporary needs and values of Australian society. Our environment and our community deserve nothing less.
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This article is based on The Australian Network of EDO's submission to the National Human Rights Consultation - 15 June 2009.
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