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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.
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