At  first  blush,  development  would  appear  to  be  the  prime  vehicle  for promoting  realization  of  human  rights  such  as  the  right  to  an  adequate  standard of  living;  rights  of  education,  food,  and  housing;  the  right  to  work;  and  the  right to  social  security

Dias, Clarence J.

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HUMAN RIGHTS, ENVIRONMENT ANDDEVELOPMENT IN SOUTH ASIA: THEIMPORTANCE OF INTERNATIONAL HUMANRIGHTS LAWClarence J. Dias*I. DEVELOPMENT, HUMAN RIGHTS AND ENVIRONMENT ....... 415II. RESPONDING WITH HUMAN RIGHTS-BASED STRATEGIES .... 417A. The Right to Development ......................... 417B. Enforcing Human Rights as a Strategy for Protecting theEnvironment ................................... 418C. The Right to Environment and Environmental HumanR ights ......................................... 4181. The Right to Environment as a Human Right ....... 4182. Environmental Human Rights .................. 419HI. LIBERATING OURSELVES, FROM OURSELVES .............. 422I. DEVELOPMENT, HUMAN RIGHTS AND ENVIRONMENTAt first blush, development would appear to be the prime vehicle forpromoting realization of human rights such as the right to an adequate standardof living; rights of education, food, and housing; the right to work; and the rightto social security. Similarly, it would seem that environmental preservation andrehabilitation would figure high on the priorities for development. However,development, as currently practiced in the countries of South Asia, hasovertaken poverty as the single-largest course of human rights violations andof environmental degradation. Numerous examples abound. Take for exampleBhopal, the worlds worst industrial disaster, a typical example of the dumpingof hazardous technologies and substances in the name of industrial technology.The much vaunted "green revolution" in agricultural development has leftin its wake departed soul, chemical, and energy intensiveness and dependency.It has had multiple negative impacts on the availability of water, the pollutionof groundwater, drought, and desertification. Deforestation and unsustainableuse of forest resources has both caused and contributed to such drought anddeforestation. Reforestation programs that involve monocropping of eucalyp-tus trees for timber production have further depleted already scarce waterPresident, International Center for Law in Development.416 ILSA Journal of International & Comparative Law [Vol. 6:415resources, and it is hardly a surprise that local communities are ripping outeucalyptus seedlings as fast as they are planted. Fisheries' resources are beingover-exploited by trawler fishing, and subsistence fisherfolk in South Asia arefacing the destruction of their livelihood. Environmentally unsustainableprojects of acquaculture are exacerbating the situation for both subsistence offisherfolk and subsistence of farmers. Large scale infrastructure projects (suchas the Narmada Dam - building project) have displaced thousands of peopleand, left in their wake, hundreds of internally displaced persons.Urbanization is taking place at a pace and manner that is creatingmegaslums; increasing numbers of debt-bonded construction workers;intolerable air pollution and traffic jams; and an insatiable thirst for energywhich can only be met through environmentally disastrous projects such asNarmada and Enron, India. Air pollution, water pollution, and noise pollutiongo unabated and checked in an insatiable race to develop and an unconscionablepursuit of profits at any cost.Indeed, the situation in many parts of South Asia is best described in a lineverse by Shel Silverstein:Oh if you are bird, be the early bird,And catch the worm for your breakfast plate,If you are a worm,Sleep late.The development countries in South Asia have become a world ofdevelopment predators and developmental victims and indeed, as the Bhopaltragedy shows, even the option of "sleeping late" may not prove a viablesurvival strategy.As we sit here this morning, amidst oak paneled walls and marblefireplaces, I urge you to transport yourself back in time for a moment to a latenight fifteen years ago in December to the city of Bhopal. A young man by thename of Kailash Panwar struggled back to consciousness to find that he was atthe bottom of a pile of human bodies being taken in a truck to a mass cremation.An explosion in a storage tank in Union Carbide's pesticide producing planthad released forty tons of methyl-isocyanaide and other lethal gases in theatmosphere. As the poisonous cloud spread over the populous city, it left deathand devastation in its wake. The accident occurred in part because as a cost-cutting measure, several of the safety precautions (including spendingapproximately $50 per day to keep the deadly gas refrigerated as required bythe company's own operating manual) had been discontinued. The plant hadbeen running at a loss recently, because, after years of profit from the overapplication of the pesticide, the pests had now grown immune! Not so,unfortunately for the designs of Bhopal. Young Kailash Panwar spent the nextsix years of his life in extreme pain and suffering, shuttled from one hospitalbed to another, with doctors unable to even alleviate, leave alone cure, thedeadly legacies of his exposure on that fatal night.II. RESPONDING WITH HUMAN RIGHTS-BASED STRATEGIESIn India, South Asia, and indeed throughout the developing world, Bhopalcatalyzed and inspired the search for effective counter strategies and three basichuman rights strategies have emerged.A. The Right to DevelopmentIn 1986, the United Nations General Assembly adopted the Declaration onthe Right to Development. The United States was the lone Member Statecasting a negative vote, and a few European countries abstained. Since 1986,the right to development has been reaffirmed by consensus, (with no dissentwhatsoever) at several United Nations global conferences as a "universal andinalienable right and an integral part of fundamental human rights."The right to development is both an inalienable and collective right, and,like other solidarity rights, seeks to realize Article 28 of the UniversalDeclaration on Human Rights which states, "[e]veryone is entitled to a socialand international order in which ... rights and proceedings... can be fullyrealized."' The right to development has several important and unique factors:1. It redefines development as a "comprehensive economic, social,cultural, and political process which aims at the constantimprovement of the well-being of the entire population and ofall individuals."2. It makes "realization of all human rights" the sole rationale ofdevelopment.3. It reiterates the right of "active, free, and meaningfulparticipation," both individual and collective, in all decisionsrelating to development.4. It proscribes exclusion or discrimination from development.5. It prescribes for distribution of the benefits from development.6. It mandates that development must be human-centered.7. It requires "measurable realization of human rights," anessential criteria for evaluating development.2I. Information Technology Section of the Department of Public Information, Fiftieth Anniversaryof the Universal Declaration of Human Rights (visited Feb. 19, 2000). <http://www.un.org/rights/50/decla.htm> [Hereinafter "Human Rights"].2. Id.20001 Dias418 ILSA Journal of International & Comparative Law [Vol. 6:415Thus, the right to development provides a normative basis both forprohibitive unsustainable development and for promoting human developmentwhich is environmentally sustainable.B. Enforcing Human Rights as a Strategy for Protecting the EnvironmentThe preamble of the Draft Principles on Human Rights and theEnvironment (Draft Principles), annexed to the report of the United NationsSpecial Rapporteur On Human Rights and Environment, clearly reiterates,"human rights violations lead to environment degradation and environmentaldegradation leads to human rights violations."3The Report of the Special Rapporteur analyzes the effects of theenvironment on the enjoyment of fundamental rights, notably the right to selfdetermination; the right to life; the right to health; the right to food and housing;the right to safe and healthy working conditions; the right to information; andthe right to popular participation, freedom of association, and cultural rights.Thus, the enforcement of human rights, both civil and political, as well aseconomic, social and cultural, provides a strategy for protecting theenvironment. In particular, as the Indian courts have shown, the right to lifecan be interpreted in a manner that proscribed several environmentally soundpractices. Other rights of particular importance are the right of selfdetermination (to "freely pursue" development); the right to equal participationof the law, and freedom from discrimination.C. The Right to Environment and Environmental Human RightsThere are environmentalists who believe that while the strategy ofenforcing human rights to protect environment is a useful one, it is not enough.They have been working therefore to get recognition and enforcement of theright to environment and environmental rights.1. The Right to Environment as a Human RightAlthough the right to environment has not yet gained recognition underinternational law, the constitutions of forty-nine countries do recognize the rightto environment. The substantial context of such a right varies from being theright to clean, safe, or healthy living environment. The procedural context ofsuch a right includes one or more of the following components:.3. Sierra Club Legal Defense Fund, The 1994 Draft Declaration of Principles on Human Rightsand the Environment (visited Feb. 19, 2000) <http'/www.tufts.edu/departments.fletcher/multi/www1994-decl.html> [hereinafter Draft Declaration].The right to know and act; the right to participate (and realize theprinciple of subsidiary as articulated at Rio); and the right to judicialand/or administrative remedies including preventive remedies. Attimes, the right to participate is accompanied by the requirement ofconducting environmental impact assessments.2. Environmental Human RightsThe Draft Principles set out in the Annex to the Right of the UnitedNations Special Rapporteur on Human rights and Environment set out a virtualcharacter of environmental human rights. Part I of the Draft Declaration detailskey general concepts. Principle 1 reiterates the interdependence andindivisibility of human rights, an ecology sound environment, and sustainabledevelopment. Principle 2 reaffirms the right to freedom of discrimination inregard to actions and decisions that affect the environment. Principle 4 sets outthe principle of intergenerational equity.Part I of the Draft Declaration details the following substantiveenvironmental human rights:I. The right to freedom from pollution, (Principle 5), as anintegral part of the rights to life, health, work, privacy, personalsecurity, and development. Principle 5 makes clear that theright to freedom from pollution applies within, across, oroutside national boundaries.42. The right to the highest attainable standard of health, free fromenvironmental harm. (Principle 7).-3. The right to safe and healthy food and water adequate to oneswell-being. (Principle 8).64. The right to adequate housing, land tenure, and livingconditions in a secure, healthy, and ecologically soundenvironment. (Principle 10).'5. Freedom from eviction and the right to participate effectivelyin decisions regarding resettlement. (Principle 1 ).'6. The right to timely assistance in the event of natural or othercatastrophes. (Principle 12).'7. The right to benefit equitably from the conservation andsustainable use of natural resources. (Principle 13). 1o4. Id. at princ. 5.5. Id. at princ. 7.6. Id. at princ. 8.7. Id. at princ. 10.8. Draft Declaration, supra note 3, at princ. 16.9. Id. at princ. 12.10. Id. at princ. 13.2000] Dias 419420 ILSA Journal of International & Comparative Law [Vol. 6:4158. The right of indigenous peoples to control their land and naturalresources. (Principle 14)."Part Ed of the Draft Declaration sets out procedural aspects of environmentalhuman rights including:1. The right to information. (Principle 15).122. The right to hold and express opinions and to disseminate ideasand information regarding the environment. (Principle 16). "3. The right to environment and human rights education.(Principle 17). 144. The right to active, free, and meaningful participation and theright to prior assessment of the environmental, developmental,and human rights consequences of proposed actions. (Principle18).155. The right to free and peaceful association for the purpose ofprotecting the environment. (Principle 19).166. The right to effective administrative and judicial remedies andredress. (Principle 20)."7Part IV of the Draft Declaration sets out the following correlative duties:1. Of all persons, individually and collectively to protect andpreserve the environment. (Principle 21)."82. The duties of States to protect the environment in all acts ofcommission or omission, (Principle 21),"9 with severalcorrelated duties regarding environmental impact assessment;control; licensing; regulation; and prohibition; publicparticipation; monitoring and management; and reduction ofwasteful processes of production and patterns of consumption.The State duties include the duty to "take measures aimed atensuring that transnational corporations, wherever they operate,11. Id. at princ. 14.12. Id. at princ. 15.13. Draft Declaration, supra note 3, at princ. 16.14. Id. at princ. 17.15. Id. at princ. 18.16. ld. at princ.19.17. Id. at princ. 20.18. Draft Declaration, supra note 3, at princ. 25.19. Id.2000]carry out their duties of environmental protection and respectfor human rights." (Principle 22).2o3. Special duties regarding destruction of the environment inconnection with armed conflict. (Principle 23).214. The duty of "all international organizations and agencies" toobserve the Declaration. (Principle 24).22Part V of the Draft Declaration sets out special considerations1. To pay special attention to vulnerable persons and groups(Principle 25), including women, children, indigenous peoples,refugees, and the disable poor.232. The rights in the Declaration may be subject only to restrictionsprovided by law which are necessary to protect public order,health, and the fundamental rights and freedoms of others.(Principle 26).43. All persons are entitled to a social and international order inwhich the rights in this declaration can be fully realized.(Principle 27).2The Draft Declaration has a potential to make significant contributions toprotecting human rights and environment by advancing a standard-settingprocess; by raising awareness of the public, national governments, andinternational organizations; by advancing the process of creation ofimplementing monitoring and redress mechanisms; and by facilitating themobilization of public pressure for the protection and promotion of humanrights and the environment. After all, environmental human rights, like allhuman rights, do not function solely through formal international procedures,although such procedures and their national counterparts, are indeed important.The principles in the Draft Declaration do address the key issues implicated inthe interrelationships between human rights and the environment. Widespreaddissemination, discussion and action on the Draft Declaration, will helppromote and protect human rights and the environment through recognition,implementation, and enforcement of environmental human rights.20. Id. at princ. 22.21. Id. at princ. 23.22. Id. at princ. 24.23. Draft Declaration, supra note 3, at princ. 25.24. id. at princ. 26.25. Id. at princ. 27.DiasILSA Journal of International & Comparative Law [Vol. 6:415Il. LIBERATING OURSELVES, FROM OURSELVESEnvironmental activists and human rights activists, at times, tend to be atodds with one and another. The "deep ecologists" are disdainful of theanthropocentric nature of human rights activists as being excessivelyconfrontational and adversarial. Human rights activists are disdainful ofconcentration strategies that tend to protect the environmentfrom people ratherthan for people. A common middle ground would appear to be the right toenvironment and environmental human rights. But until international law doesrecognize such rights, it would be desirable to use the international humanrights treaties and conventions that do exist. After all, as yet, we do not havean international convention on sustainable development. We only have the Rioprinciples. We need enforceable international law to address the growingenvironmental problems resulting from practices of economic globalization, theso-called paradigm shift from development through aid to development throughtrade and investment. Let me close by returning to the story of Kailash Panwar.After six years of intolerable suffering, Kailash Panwar committed suicide bysetting fire to himself in his hospital bed.Milan Kundera, the Czech author reminds us that "the struggle of manover power is the struggle of memory over forgetting."Let us pledge never to forget Kailash Panwar and to learn from the tragedyof Bhopal and its countless counterparts all over South Asia, and indeed theworld.422

Human Rights, Environment And Development In South Asia: The Importance Of International Human Rights Law

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Human Rights, Environment And Development In South Asia: The Importance Of International Human Rights Law

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