|
V. Advantages and Disadvantages of a Human Rights Approach
As aforementioned cases law have shown, the human rights approaches to solve environmental problems may work sometimes. What are the advantages and disadvantages of using a human rights approach rather than an approach based in regulation, criminal law, or the law of tort?
The advantages of a human rights approach might be based on these reasons. First, as Anderson argued, a human rights approach is a strong claim, it is “a claim to an absolute entitlement theoretically immune to the lobbying and trade-offs which characterize bureaucratic decision-making” . Second, the human right approach can provide a procedural access to justice in a way that bureaucratic regulation, or tort law, simply cannot. “A robust environmental right can mobilize redress where other remedies have failed” . This is particularly important in cases like the Asian Rare Earth litigation in Malaysia, where proof of causation and other technical barriers make tort law ineffective. It was also important in the Indian context, where procedural simplicity has made environmental rights highly attractive to aggrieved parties. An environmental right may serve as the ultimate ‘safety net’ to catch legitimate claims which have fallen through the procedural cracks of public and private law. Thirdly, a human rights approach may “stimulate concomitant political activism on environmental issues” . Concerned citizens and NGOs are more likely to rally around a general statement of right than a highly technical, bureaucratic regulation expressed in legalese. Fourthly, at present, environment damage is unequally distributed at both national and international levels, a human rights approach can provide the conceptual link to bring local, national, and international issues within the same frame of legal judgment. Fifthly, “a general expression of right can be interpreted creatively as issues and contexts change” . This is evident in the Indian jurisprudence, where the right to a healthy environment held to be implicit in the right to life has been given more precise definition on a case-by-case basis as specific disputes have come before the courts. Thus, definitions and trade-offs evolve gradually in the light of experience rather than needing to be defined comprehensively and rigidly in a single piece of regulatory legislation.
On the other hand, there are inherent limitations in a human rights approach to environmental protection. First, human rights only protect individuals. Impacts on people are an important, yet relatively small area of environmental protection. Air pollution, water pollution and others can make the sky become grey, water become black, plants and animals die. Maybe they do not directly interfere with human rights, but they are tightly concerned the whole circumstances. Second, the interests of the environment and of people do not necessarily coincide. Human rights may in fact cause a depletion of natural resources, and their behavior is not necessarily compatible with the aim of long-term ecological integrity. Third, human rights only protect the present generation. They cannot easily protect future generations or give effect to the aims of sustainable development, which require us to preserve the ability of future generations to enjoy the natural resources available to us. Finally, it is difficult to address the complex and often technical issues of environmental management by a simple right. Environmental protection, in other decision-making and implementation, requires “a legal language capable of incorporating highly technical specifications, distinguishing among industrial process, evaluating elusive causal relationships, and protecting complicated biological and ecological systems” . In conclusion, a simple language of rights can not resolve all the issues relatived to environmental protection.
|
