THE RIGHT TO LIVE IN AN UNPOLLUTED ENVIRONMENT

Emma O. Omuojine
B.Sc (Nigeria), LL.M (Lagos), FNIVS, BL.

Partner, Omuojine & Associates

200 Igbosere Road, Lagos
diokpalaws@yahoo.com

1.0 INTRODUCTION

Until recently environmental protection, public health and human rights were
viewed as distinct areas of public policy by governmental institutions and
non-governmental organizations alike at both national and international
levels1. With increasing globalisation, the environmental and public health
impacts of rapid industrialization and urbanization in different regions of the
world are now being recognized as having major human rights implications by
the international community2. Indeed health has seemed to be the umbilical
cord that bridges the two fields of environmental protection and human
rights3. According to the Stockholm proclamation,

Man is both creature and moulder of his environment, which gives

him physical sustenance and affords him the opportunity for
intellectual, moral, social and spiritual growth… Both aspects of
man’s environment, the natural and the man-made are essential to
his well-being and to the enjoyment of basic human rights-even the
right to life itself4.

2.0 WHAT ARE HUMAN RIGHTS.

Human rights are international moral norms that aspire to protect all people
everywhere from severe political, legal, and social abuses. Examples of

1
A. Karim Ahmed, Environmental Protection, Public Health and Human Rights, An Integrated
Assessment April 2003.
2
Ibid
3
Dinah Shelton; Human Rights, Health & Practice, 2002.
4
Stockholm Declaration of the UN Conference on the Human Environment, 16 June 19721. UN Doc.
A/CONF. 48/14/Rev.1 @ 3 (1973).
 human rights are the right to freedom of religion, the right to a fair trial and
fair hearing when charged with a crime, the right not to be tortured and the
right to engage in political activity. These rights exist in morality and in law at
the national and international levels. They are addressed primarily to
governments, requiring compliance and enforcement. The main source of the
contemporary conception of human rights is the 1948 Universal Declaration
of Human Rights and the many human rights documents and treaties that
have followed in its wake5.

2.1 The Universal Declaration of Human Rights (UDHR) sets out a list of over
two dozen specific rights into six or more families namely security rights that
protect people against crime such as murder, massacre, torture and rape.
liberty rights that protect freedoms in areas such as belief, expression,
association, assembly, and movement, political rights that protects the liberty
to participate in politics through actions such as communicating, assembling,
protesting, voting and serving in public office; due process rights that protect
against abuses of the legal system such as imprisonment without trial, secret
trials and excessive punishments equality rights that guarantee equal
citizenship, equality before the law, and non-discrimination, and welfare
rights or economic and social rights that require provision of education to all
children and protection against severe poverty and starvation 6. There is also
group rights contained in subsequent treaties which include protections of
ethnic groups against genocide and the ownership by countries of their
national territories and resources7.

3.0 ENVIRONMENT AND POLLUTION.

If we look at society from a historical perspective, we realise that protection
and preservation of the environment has been integral to the cultural and
religious ethos of most human communities 8. Nature has been venerated by
5
Stanford Enccyclopedia of philosophy, June 11, 2003.
6
Ibid
7
Ibid
8
Y.K.Sabharwal, Human Rights and the Environment. (Internet source)

2
 ancient Hindus, Creeks, Native Americans and other religions around the
world who worshipped all forms of nature believing that it emanated from the
God Spirit. Hinduism declared in its dictum “that the earth is our mother and
we are all her children. The ancient Greek worshipped Gaea or the earth
goddess9. Here in Nigeria the Ibos worshipped ‘Ala’ i.e. Land the Yoruba’s
‘Yemoja’ goddess of the sea, ‘Sango’, god of thunder etc. Islamic Law
regards man as having inherited “all the resources of life and nature” and
owing certain duties to God in using them 10. In the Judeo – Christian tradition
God gave the earth to his people through Adam and Eve and their offspring as
an everlasting possession to take care of and pass from generation to
generation11.

3.1 However environment transcends the terra firma. Environment in broad terms
embraces both the natural and built surrounding; it covers practical
environment conservation work, protection of landscape, improving wildlife
habitats, researching global warming, combating water and air pollution,
promoting public enjoyment of and access to the countryside as well as the
preservation and restoration of buildings and monuments of architectural and
or historical importance, environmental education and interpretation and rural
or urban regeneration [Stephen Woollett]12.
There are three broad types of environmental pollution namely, Air /
Atmospheric pollution, Marine / Water pollution and Land pollution.
Environmental pollution on its part is the degradation by man of the
environment through the introduction into the environment of noxious and
harmful substances like grit, dust, smoke, fumes, carbon-monoxide, sulphur-
dioxide, ammonia, human waste, industrial and chemical waste, chemical
fertilizers and herbicides, emission, wind-borne particles, blaring of horns,
cacophonic noises from loud speakers et al13.

9
Ibid
10
Op cit 8
11
Genesis 1:1-31, 17: 7-8
12
Justin Thornton & Silas Beckwith;”Environmental Law” Sweet & Maxwell, London. 1997
13
Smart N Uchegbu.”Environmental Management & Protection” Precision Publishers, Enugu.1998.

3
3.2 Toxic compounds which are emitted into the air, water, soil and subsoil and
which are persistent and accumulate in living organisms are a factor in the
onset of a number of ailments in human beings. In particular, they account for
an increase in the number of tumors, in pathologies of the reproductive system
in respiratory diseases, in changes in behaviour, in permanent neurological
damage and in alterations to the immune and endocrine systems14. The high
level of environmental pollutants which people are exposed to is linked to
industrial production activities15.

3.3 However, non of these wastes is as noxious and damaging as those associated
with the oil and gas industry in view of their toxic properties of hydrocarbon
constituents which cause the gradual determination of ecological, aquatic and
animal life16. These environmental pollution often arise from upstream
operations in the form of blow-outs geothermal stream, gas flaring, and oil
spills including spills from down-stream operations of transporting petroleum
products via pipelines to storage depots spotted all over the land17.

3.4 It is obvious that the deleterious act of man in the name of industrialization
and development impact negatively on the environment from marine and
coastal life to the ecological balance of natural areas, the biosphere, plant and
animal life, from which man derives his sustenance for the following:

1) The earth is losing about a hundred species of various kinds of animal

and plant life daily due primarily to human pressures. In 1987 alone,
about 50million acres of species in rich forest disappeared.
2) Crude oil is being spilled into the oceans.
3) In Europe the population of forests showing damage resulting from
acid deposition increased from 8% in 1982 to 52% in 1998 and about a
14
The Right of Children To A Pollution Free Life Campaign. (Internet Sourced, 2004)
15
ibid.
16
17

4
 third of Europe’s forests are affected by acid pollutants. In Nigeria 1/3
of our Savannah vegetation has been lost to desertification in 40years
since independence. Similarly the mangrove and tropical vegetation
within the Niger-Delta is been lost through gas flaring, crude oil, and
acid pollutants18.
4) Human activity added the equivalent of 6.5 billion tones of carbon to
the atmosphere in 1987, in the form of carbon monoxide and other
green house gases, amounting to approximately 1.25 tones per person
on the planet.
5) About 3 million infants and children die yearly from diarrhea related
diseases while the physical and mental development of hundreds of
millions of others are impaired by repeated attacks of diarrhea due to
contaminated food and water
6) Millions of people of all ages suffer from debilitating intestinal
parasitic infections caused by pathogens in the soil, food or water and
from respiratory or other diseases caused or accentuated by pathogens
in the air19.

3.5 The widely acclaimed notion that pollution is a sine-qua-non and an

unavoidable consequence of industrialisation is fast giving way to the concept
of sustainable development. Consequently development need not necessarily
have destructive consequences on the environment if proper precautionary
measures are taken. All development planning must be infused with
environmental considerations, while environmental management could be
addressed from the perspective of development20.

18
There is a more devastating effect on the Niger-Delta where aside from acid rain there is the noxious
effect of oil spillage and gas flaring.
19
W.H.O Report “Our Planet Our Health” Report of the Commission on Health and the Environment.
1992. Onyido, J.C.: The Right To A Safe Environment, Finu Inv. Law, vol. 8 Nos1-2 p.61.
20
Onyido J.C op cit. However, the problem often arises of reconciling government economic interest
with the socio-cultural and human rights of the citizenry as currently being played out in the Niger-
Delta.

5
4.0 LINKAGES BETWEEN HUMAN RIGHTS AND ENVIRONMENT.
Human rights in the context of environment and sustainable development
recognize that for human communities to survive, they must have an adequate
and secure standard of living, they must be protected from harmful substances
and unsafe products, they must learn to conserve and equitably share natural
resources. Without these environmental and public health policies in place,
human rights for respect, dignity, equality, non-discrimination, participatory
governance and indeed for life itself cannot be achieved21.

4.1 Over the years, the international community has increased its awareness on
the relationship between environmental degradation and human rights abuses.
For several obvious reasons, it is clear that, poverty situations and human
rights abuses are worsened by environmental pollution and degradation.

4.2 First, the exhaustion of natural resources portends unemployment and

emigration to cities. Secondly, poor environmental conditions contribute to the
increase in diseases and to the speed of infectious diseases. Thirdly,
environmental degradation poses new problems such as environmental
refugees who suffer from significant economic socio-cultural and political
consequences and finally environmental degradation worsens existing
problems suffered by developing and developed countries e.g. Air pollution
accounts for between 2.7million and 3.0 million of deaths annually of which
90% are from developing countries22.

4.3 Environmental and human rights law have essential points in common that
enable creation of a field of cooperation between them. First, both disciplines
have deep social roots, granted that human rights law is more rooted within
the collective consciousness; the accelerated process of environmental
degradation is generating a new environmental consciousness. Also the
phenomena brought about by environmental degradation transcends political
21
A Karim Ahmed op. cit.
22
a Sabharwal Y.K.(Justice) Human Rights and Environment. www.com 2004

6
 boundaries and it is of critical importance to the preservation of world peace
and security. Thirdly, both areas of law tend to universalise their object of
protection. Human Rights are presented as universal and environmental
protection appears as everyone’s responsibility23.

4.4 This brings us to the trends in international law regarding the emerging right
to a safe and pollution free environment and the protection thereof.
The changing content and concept of human rights has since expanded beyond
the neo-classical rights contained in the United Nations Charter24, the
Universal Declaration of Human Rights25 and the Economic Social and
Cultural (ECOSOC) Rights26 normally referred to as first and second
generation rights respectively to more modern rights provided for in the
Charter of Economic Rights and Duties of States 27 and the Declaration on
the Establishment of a New International Economic Order 28 on the
creation of a just and more equitable world, now referred to as third
generation rights.

4.5 In more recent times, the heightened world consciousness reflective of the
present need and necessity for the conservation of the worlds finite resources
and protection of the environment now subsumed under the term “sustainable
development” has quite “justifiably given rise to what has been described as
the forth generation of rights”29.

4.6 In a report based on a recent meeting of experts in December 2001 jointly

convened by the United Nations Commission on Human Rights the
UNHCHR and the United Nations Environment Programme, it was stated

23
Sabharwal loc cit.
24
Articles 1,55,56,62,68 &76
25
UN DOC. A/811 of 10/12/1948.
26
UNGA Res. 2200(XX1) of 16/12/1966
27
UNGA Res. 3281(XX1X) OF 12/12/1974;
28
UNGA Res. 1301(s-v1) of 1/05/1974.
29
Oyebode, Akin (Prof); Un and Protection of Human Rights In Africa, in Int. Law & Politics: African
perspective Bolabay Publ. 2003 p.199.

7
 that since the 1992 Earth Summit meeting in Rio de Janeiro, important
developments have occurred at the national and international levels that
“indicate a growing interconnectedness between the fields of human rights
and environmental protection. The overall context for these developments is
the concept of sustainable development, which requires that different societal
objectives be treated in an integrated manner” In addition, the experts noted in
their review of actions of international treaty bodies in the past decade shows
that:

…. a substantial body of case law and decisions has recognised the

violation of fundamental human rights as the cause, or result of
environmental degradation. A significant number of decisions at the
national and international levels have identified environmental
harm to individuals or communities, especially indigenous people,
arising as a result of violations of the rights to health, to life, to self-
determination, to food and water, to housing30.

4.7 Some have agreed to the contrary, that it is ill advised to designate as human
rights all rights, which do not pertain to individuals but to groups and
collectivities, in accordance with general usage and convention. Consequently
the new 3rd and 4th generation rights, like the right to economic development,
to protection of the environment, rights over certain resources as falling within
the common heritage of mankind and the right to a peaceful environment are
concepts which merely should constitute objectives of social policy or items
in a political programme31, but certainly not as legally enforceable claims 32.
One of the very first references to any form of individual right to a healthy
environment can be found in principle 1 of the UN Declaration on the Human
Environment, which provides that;

30
A Karim Ahmed op cit p.13
31
Vide Constitution of the FRN ch.11
32
Robertson A.H & Merrills J.G: Human Rights In the World. Manchester University press, 1992
pg.255-259.

8
 “Man has the fundamental right to freedom, equality and adequate
conditions of life, in an environment of a quality that permits a life
of dignity and well being. And he bears a solemn responsibility to
protect and improve the environment for present and future
generations33.

4.8 Under customary international law, international law primarily regulates the
relationship between states inter se and not directly the individuals that make
up the state. The above principle however seeks to make out a case for an
internationally recognisable individual right to a safe environment 34. Thus the
depletion of the ozone layer through gas flaring, the introduction of noxious
substances into the biosphere and the resultant global warming, the Chernobyl
disaster and the fall out thereof, the dumping of toxic waste as in the Koko
waste dump of 1987, nuclear waste dump on the sea bed or the territories of
unsuspecting states are few examples of acts which are now considered as
impinging on the environmental rights of the population35.

5.0 ENVIRONMENT, SUSTAINABLE DEVELOPMENT AND HUMAN

RIGHTS.
The importance of environmental protection and public health in the context
of sustainable development vis-à-vis matter of fundamental human rights was
first clearly enunciated in the 1987 Brundland Commission Report36. It
defined sustainable development in its overview chapter thus:

5.0.1 Humanity has ability to make development sustainable, to ensure that

it meets the need of the present without compromising the ability of

33
The UN Conference on the Human Environment, Stockholm Conference, 1972. See also Principle 1
Declaration of the UN Conference On Environment & Development Rio De Janeiro, 3-4 June 1992.
34
Onyido J.C. op cit.
35
Oyebode, Akin op cit. p.201.
36
Officially drafted by the World Commission on Environment and Development which published its
final report under the title, Our Common Future.

9
 future generations to meet their own needs. The concept of sustainable
development does imply limits – not absolute limits but limitations
imposed by the present state of technology and social organisation on
environmental resources and by the ability of the biosphere to absorb
the effects of human activities… The commission believes that
widespread poverty is no longer inevitable. Poverty is not only an evil
in itself, but sustainable development requires meeting the basic needs
of all and extending to all the opportunity to fulfill their aspirations for
a better life37.

5.1 In its proposed legal principles for environmental protection and sustainable
development, the Brundland Commission in annex 1 to its Report, stated a
set of General Principles Rights and Responsibilities as follows:

1. Fundamental Human Rights: All human beings have the

fundamental right to an environment adequate for their health and well
being
2. Inter generational Equity: States shall conserve and use the
environment and natural resources for the benefit of present and future
generations
3. Conservation and Sustainable Use: States shall maintain ecosystems
and ecological processes essential for the functioning of the biosphere,
shall preserve biological diversity, and shall observe the principle of
optimum sustainable yield in the use of living natural resources and
ecosystems.
4. Environmental Standards and Monitoring: States shall establish
adequate environmental protection standards and monitor changes in
and publish relevant data on environmental quality and resource use.

37
The seeming contradiction in this definition in relation to environmental protection constitutes the
defence of the U.S Court in withholding its signature from the Kyoto Protocol.

10
 5. Prior Environmental Assessments: States shall make or require
environmental assessments of proposed activities which may
significantly affect the environment or use of natural resource38.
6. Prior Notification, Access and Due Process: States shall inform in a
timely manner all the persons likely to be significantly affected by a
planned activity and to grant them equal access and due process in
administrative and judicial proceedings.
7. Sustainable Development and Assistance: States shall ensure that
conservation is treated as an integral part of the planning and
implementation of development activities and provide assistance to
other states, especially to developing countries, in support of
environmental protection and sustainable development.
8. General Obligation to Co-operate: States shall co-operate in good
faith with other states in implementing the preceding rights and
obligations.

5.2 Since the initial publication of the Brundland Commission Report the world
population has grown from 5.0 billion in 1987 to more than 6.2 billion by
2002 and estimated to hit approximately 10 billion by 205039. With such an
unprecedented population explosion, immense strain is being placed on
human communities and natural ecosystems around the world. This is
especially true in developing countries where many of the inhabitants continue
to live in abject poverty; where they lack adequate shelter and food, clean
drinking water, unpolluted air and access to primary health care40.

5.3 Agenda 21 of the 1992 Earth Summit (UNCED)41 stated that “integration of
environment and development concerns and greater attention to them will lead
38
Environmental Impact Assessment Laws have been incorporated into most states legislations.
39
Karim, Ahmed A. op. cit p.14
40
Ibid; Art.25 of the UDHR is quite clearly linked to environmental protection, where clean water,
clean air adequate shelter & food and primary health care no longer considered societal privileges but
as universal human rights.
41
United Nations Conference on Environment and Development, held in Rio de Janeiro in June 1992
where some 178 countries adopted Agenda 21.

11
 to the fulfillment of basic needs, improved living standards for all, better
protected and managed ecosystem and a safer, more prosperous future.
At the United Nations World Summit on Sustainable Development
(WSSD) Conference held in Johannesburg, South Africa in August /
September 2002, the meeting agreed to place human rights and ethnical
considerations within the purview of environmental protection and sustainable
development in the WSSD Plan of Implementation.

5.4 In a keynote address given by Mary Robinson 42 she stated the link between
environment and human rights thus:

“The interdependence of human rights, environmental protection

and sustainable development has been described using the metaphor
of a triangle. Although sustainable development is the overarching
goal, it cannot be achieved without also respecting human rights and
protecting the environment. Each side is linked to, and mutually
supports each other, without one, effective realisation of the other
too is not possible… Environmentalists must come to realise that the
language and framework of human rights provides another tool in
their struggle to protect the environment. At the same time human
rights advocates need to look to the significant role that
environmental degradation in all its forms – has on the enjoyment of
individual rights not alone for those living today but for future
generations”

To me, this surmise of Mary Robinson encapsulates the nexus between environment,
sustainable development and human rights.

42
UN High Commissioner for Human Rights @ the workshop on human rights & the environment
organized at the Civil Society Forum during the WSSD Conference on Sept. 1 2002 in S.A.

12
6.0 APPROACHES TO ENVIRONMENTAL LAW AND HUMAN RIGHTS
In Resolution 45/94, the United Nations General Assembly recalled the
language of Stockholm43 stating that all individuals are entitled to live in an
environment adequate for their health and well being. The resolution called
for enhanced effort towards ensuring a better and healthier environment.
Suffice to say that Principle 1 of the Stockholm Declaration established a
foundation for linking human rights, health and environmental protection
stating that

“Man has the fundamental right to freedom, equality and adequate

conditions of life, in an environment of a quality that permits a life of
dignity and well being.”44

6.1 In the three decades since the Stockholm Conference, the links that were
established by these first declaratory statements have been formulated and
elaborated in various ways in international legal instruments and the decisions
of human rights bodies. To a great extent these instruments and decisions
involve taking a rights based approach to the topics, albeit with different
emphasis45.

6.2 The first approach, perhaps closest to the Stockholm Declaration is one where
environmental protection is described as a pre-condition to fulfilling human
rights standards and the enjoyment of internationally guaranteed human rights
especially the rights to life and health. Environmental protection is thus an
essential instrument in the effort to secure the effective universal enjoyment of
human rights46. Klaus Toepfer47 reflected this approach in his statement to the
57th Session of the Commission on Human Rights in 2001 when he said

43
Stockholm Declaration of the UN Conference on the Human Environment, 16 June 1972.
44
Stockholm UNCHE op cit
45
HEALTH AND human Right Working Paper Series No.1 2002 HR, Health & Environmental
Protection: Linkages In Law & Practice.
46
Op cit
47
Executive Director, UNEP

13
6.2.1 “Human rights cannot be secured in a degraded or polluted
environment. The fundamental right to life is threatened by soil
degradation and deforestation and by exposures to toxic chemicals,
hazardous wastes and contaminated drinking water…
Environmental conditions clearly help to determine the extent to
which people enjoy their basic rights to life, health, adequate food
and housing, and traditional livelihood and culture. It is time to
recognize that those who pollute and destroy the natural
environment are not just committing a crime against nature, but are
violating human rights as well48.

6.3 The second rights-based approach highlights the presently existing human
rights as a route to environmental protection and states, “ the legal protection
of human rights is an effective means to achieving the ends of conservation
and environmental protection”. It views certain human rights as essential
elements to achieving environmental protection which has as a principal aim
the protection of human health49. This approach is well illustrated by the Rio
Declaration50 which formulates a link between human rights and
environmental protection largely in procedural terms, declaring in Principle
10 that access to information, public participation and effective judicial and
administrative proceedings, including redress and remedy, should be
guaranteed because “environmental issues are best handled with the
participation of all concerned citizens, at the relevant level” There exists
however, a raging debate on whether to recognize an actual and independent
right to a satisfactory environment as a legally enforceable right51.

6.4 The third approach and most recent is to deny the existence of any formal
connection between human rights and the environment. Rather it views the
48
loc cit 45
49
loc cit 45
50
1992 Rio de Janeiro Conference On Environment and Development.
51
loc cit 45

14
 links as indivisible and inseparable and posits the right to a safe and healthy
environment as an independent substantive right52. Accordingly there is no
requirement for an environmental human right. The argument goes that, since
the Stockholm Conference in 1972, international environmental law has
developed to such extents that even the domestic environments of states has
being internationalised. However there are many who oppose this view
arguing that there is in fact a benefit to bringing the environmental law under
the ambit of human rights. The argument goes further that environmental law
has in many parts of the world, at both international and domestic level
suffered from the problem of standing; and because of this inherent barrier, it
is often difficult for individuals or groups to challenge infringements on
environmental law, treaties or directives53.

7.0 EXISTING HUMAN RIGHTS INSTRUMENTS AND

ENVIROMENTAL PROTECTION.
Most human right treaties were drafted and adopted before environmental
protection became a matter of international concern. As a result, there are few
references to environmental matters in international human rights instruments,
although the right to life and health are certainly included and some
formulations of the latter right make reference to environmental issues54.

The Universal Declaration of Human Rights, adopted and proclaimed by

the United Nations General Assembly in 1948, provides for the right to life,
liberty and security of persons in Article 3 and the right to health in Article 25.

7.1 The International Covenant on Economic, Social and Cultural Rights

(1CESCR)55 in Article 7b guarantees the right to safe and healthy conditions
of work and in Article 10 the right the right of every child and young person
to be free from work harmful to their health while Article 12 expressly calls
52
loc cit 45
53
Salihavuel U.K. op. cit.
54
op cit 45 p.6.
55
December 16, 1966

15
 on state parties to take steps for “the improvement of all aspects of
environmental and industrial hygiene”. The Convention on the Rights of the
Child56 refers to aspects of environmental protection in respect to the child’s
right to health. Article 24 provides that states parties shall take appropriate
measures to combat disease and malnutrition “through the provision adequate
nutritious foods and clean drinking water, taking into consideration the
dangers and risks of environmental pollution57. ILO Convention No 169
concerning Indigenous and Tribal Peoples in Independent Countries 58 contains
numerous references to the lands, resources and environment of indigenous
peoples59.

7.2 The right to a healthy environment is now to be found in a number of regional

human rights instruments around the world. Article 11 of the Additional
Protocol to the Inter-American Convention on Human Rights60, states that

1. Everyone shall have the right to live in a healthy environment

and to have access to basic public services,
2. The state parties shall promote the protection, preservation and
improvement of the environment.

7.3 In the absence of petition procedures pursuant to environmental treaties cases

concerning the impact of environmental harm on individuals and groups have
often been brought to international human rights bodies e.g. the Committee
on the Elimination of Discrimination Against Women (CEDAW) linked
environment to the right to health in its concluding observations on the State
Report of Romania, expressing its concern about the situation of the
environment, including industrial accidents, and their impact on women’s
health similarly in its concluding observations on the State Report submitted

56
NY, November 20,1989
57
op cit 45. p.6 Article 24(2)( C )
58
Geneva, June 27, 1989.
59
Articles 2, 6, 7,& 15.
60
1994 also known as San Salvador Protocol.

16
 by Jordan, the CRC recommended that Jordan take all appropriate measures
including through international cooperation to prevent and combat the
damaging effects of environmental pollution and contamination of water
supplies on children and to strengthen procedures for inspection. Also the
CRC concluding observations on South Africa also expressed the
Committee’s “concern at the increase in environmental degradation, especially
as regards air pollution” and recommended that the state party increase its
effort to facilitate the implementation of sustainable development programmes
to prevent environmental degradation, especially as regards air pollution. The
European Convention on Human Rights has also been involved in
environmental matters. In Europe most of the victims invoke either the right
to information or the right to privacy guaranteed under the Convention.
Under the convention it has been recognised that pollution or other
environmental harm can result in a breach of family life.

8.0 The African Charter on Human and People’s Rights 1981 proclaims “a
right to a general satisfactory environment favourable to their environment”61.

8.1 However the indeterminate language of this provision hinders its application
first the charter’s declaration gives no indication as to how a “general
satisfactory environment” also the distinction between individual and people’s
right is not made clear62.

8.2 The Final Report of the Special Rapporteur on Prevention of Discrimination

and Protection of Minorities63 listed over 15 rights relative to environmental
quality among which include

a) The right to freedom from pollution, environmental degradations and

activities, which threaten life, health or livelihood.
61
Art. 24(1)
62
Acevedo, Marina T. “The Intersection of Human Rights and Environmental Protection In the
European Court of Human Rights,” NVU Environmental Law Journal, vol. 8. 1999. pp.460-62.
63
UN Doc E/CN4/Sub.2/1994/9, July 6 1994, Ketsentni Report.

17
 b) Protection and the preservation of the air, soil, water, flora and fauna,
and
c) Healthy food and water, a safe and healthy working environment64.

9.0 ENVIRONMENTAL INSTRUMENTS WITH PROVISIONS ON

HEALTH AND HUMAN RIGHTS
Concern for health is a constant theme in environmental agreements, indeed
one of the principal aims of environmental protection. A standard definition of
pollution, found in many legal texts is “the introduction by man, directly or
indirectly, of substance or energy into the environment resulting in deleterious
effects of such a nature as to endanger human health, harm living
resources…” etc65.

9.1 The preambles of European Community directives often state their aim as
being “to protect human health and the environment”
Similarly the Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal begins its preamble
“aware of the risk of damage to human health”66.

9.2 The Stockholm Declaration proclaims in paragraph 3 its concern about:

Growing evidence of man made harm in many regions of the earth: dangerous
levels of pollution in water, air, earth and living beings; major and undesirable
disturbances to the ecological balance of the biosphere, destruction and
depletion of irreplaceable resources, and gross deficiencies harmful to the
physical, mental and social health of the man, in the man-made environment,
particularly in the living and working environment.

9.3 Stockholm Principle 7 calls on states “to take all possible steps to prevent

64
op. Cit 45.
65
Health & HR Working Paper Series Vol. 2002 op. cit
66
Basel, March 22, 1989. 28 /LM 657.

18
 pollution of the seas by substances that are liable to create hazards to human
health.”

9.4 Article 1 of the Legal Principles for Environmental Protection and

Sustainable Development expressly links the three fields in declaring that
“All human beings have the fundamental right to an environment adequate for
their health and well-being67.

9.5 Principle 1 of Rio Declaration proclaims that human beings “are entitled to a
healthy and productive life in harmony with nature”68 and provides that states
should effectively cooperate to discourage or prevent the relocation and
transfer to other states of any activities and substances that inter alia, are
found to be harmful to human health69.

9.6 Procedural human rights are emphasized in environmental agreements for

example the right of individuals and non-governmental organisations to be
informed of environmental problems relevant to them, to have necessary
access to information, and to participate in the formulation and
implementation of decisions likely to affect their environment 70. Many
international treaties adopted since the Stockholm Conference call upon states
to take specific measures to ensure that the public is adequately informed
about environmental risks, including health risks, posed by specific
activities71. In addition to the right to information, the public is also given the
rights to participate in decision-making and access to remedies for
environmental harm72.

67
Adopted by the Expert Group of the Brundland Commission. (WCED) 18-20 June, 1986 UN Doc.
WLED/86/23/Add.1 (1986). Art.1
68
RIO 1992 Conf. CED
69
Principle 14 1992 Rio Conf. Also The Institute de Detroit International a private but influential
association at its Strasbourg session in Sept. 1997 noted that “Every Human beings has the right to live
in a healthy environment”(Art.2)
70
Arab Declaration on Environment & Devt. & Future Perspectives (Cairo Sept. 1991) A/46/632 cited
in UN Doc. E/CN.4/Sub.2/1992/7, 20(affirming the right to information about environmental issues)
71
See the Helsinki Conv. On Transboundary Effects of Industrial Accidents 31. ILM 1330(1992);
72
See Rotterdam Convention on the Prior Informed consent.

19
9.7 Among the many international agreements utilizing procedural human rights
to achieve better environmental protection to protect human health, is the
Convention on Access to Information, Public Participation and Access to
Justice in Environmental Matters73. The Convention takes a very
comprehensive approach and explicitly links human rights and the
environment. The preamble to the convention forthrightly proclaims that
“every person has the right to live in an environment adequate to his or her
health and well-being, and the duty, both individually and in association with
others, to protect and improve the environment for the benefit of present and
future generations74.” It goes further to add that to be able to assert the right
and observe the duty, citizens must have access to information, be entitled to
participate in decision-making and have access to justice in environmental
matters75. Article 9 stipulates that parties should establish a review procedure
before a Court of Law or other independent and impartial body for any
persons who consider that their request for information has not been properly
addressed.

9.9 Article 19 of the Aarhus Convention opens the door to accession by other
states, provided that they are members of the United Nations and that the
accession is approved by the meeting of the parties of the Convention.

9.10 The Protocol on Water and Health to the 1992 Helsinki Water Courses
Convention76 adopted in London on June 17, 1999, contains the most
extensive treaty provisions indicating the linkages among the three topics, to
wit, pollution, environment and health. The objective of that protocol is to

73
Prior informed consent Procedure for certain Hazardous Chemicals and Pesticides in International
Trade Sept.10, 1998. Emu T, 998:26.
74
Art.23, The Cartagena Protocol on Biosafety to the convention on Biological Diversity (Mounted
January 29, 2000) 39 KM 1027
75
Principle 10 Rio Declaration on Environmental & Devt. 1992.
76
Aarhus, June 25, 1998 signed by 35 states & EC The Conv. Came into force on 30/10/01Protocol on
water and Health to the 1992 Convention on the Protection and Use of Transboundary Water Courses
and International Lakes (London June 17, 1999)

20
 promote the protection of human, health and well being at all appropriate
levels, nationally as well as in transboundary and international contexts. The
convention notes from the outset that water is essential to sustain life and that
water quality and quantity must be assured to meet basic human needs77, a
prerequisite both for improved health and for sustainable development. The
general provisions include an obligation for parties to take all appropriate
measures to ensure adequate supplies of wholesome drinking water free from
dangers to human health78.
9.11 The Conference on Security and Co-operation in Europe (CSCE) on the
environment in Sofia in 1989 reaffirmed respect for the right of individuals,
groups and organisations concerned with the environment to express freely
their views, to associate with others and assemble peacefully, to obtain and
distribute relevant information and to participate in public debates on
environmental issues79. Also the Convention on Environmental Impact
Assessment in a transboundary context, 1991 calls for the “establishment of
an environmental impact assessment procedure that permits public
participation” in certain circumstances80.

10.0 SUSTAINABLE DEVELOPMENT AND HUMAN RIGHTS

This brings us to the inevitable question of the relationship between the
protection of the environment and the need for economic development. The
developing countries and states that are currently attempting to industrialise,
face the problem that to do so in an environmental safe way is very expensive
and the resources that can be devoted to this are extremely limited. Principle
8 of the Stockholm Declaration of the United Nations Conference on
Human Environment of 1972 emphasised that “economic and social
development is essential for ensuring a favourable living and working
environment for man and for creating conditions on earth that are necessary

77
Heal the HR Working Paper Serid No. 1 op. cit p.10.
78
ibid.
79
CSCE/SEM.36 Malcom N;”Shaw International Law” Cambridge University Press 5th Edition
pp.756-757
80
ibid.

21
 for the improvement of the quality of life” while Principle 21 stressed the
sovereign right of states to exploit their own resources.

10.1 Principle 2 of the Rio Declaration adopted at the UNCED 1992 noted that
states have the “sovereign right to exploit their own resources pursuant to their
own environmental and developmental policies” while Principle 3, states that
“the right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations.”
The correct balance between development and environmental protection is
now one of the main challenges facing the international community and
reflects the competing interests posed by the principle of state sovereignty on
the one hand and the need for international cooperation on the other. It also
raises the issue as to how far one takes into account the legacy for generation
yet unborn of activities conducted at-present time. And also deferring to the
human rights of individuals and peoples while exploiting natural resources
meant for their economic well-being. To me this situation is a classical
example of ‘agony of choice.’

10.2 The Energy Charter Treaty81 note in Article 19 that contracting parties
“shall strive to minimize in an economically efficient manner harmful
environmental impacts” parties are to “strive to take precautionary measures
to prevent or minimize environmental degradation” and agree that the polluter
should in principle, bear the cost of pollution, including Transboundary
pollution, with due regard to the public interest…”82

10.3 In the nineties, the international community adopted a series of agreements

and conventions that provide regulatory procedures and guidelines to control
the global export and shipment of toxic substances and hazardous wastes. In
1995, the International Code of Conduct on the Distribution and Use of
81
Signed at Lisbon in 1994 by OECD & Eastern European & CIS states, 33 ILM, 1995 P.360.
82
Malcom Shaw op. cit. One potentially innovative method for linking economic underdevelopment
and protection of environment is the “debt for nature swaps “ arrangement thereby reducing debt &
preserving the environment.

22
 Pesticides was adopted by the Food and Agriculture Organisation (FAO)
followed in 1997 by the enactment of the London Codelines for the Exchange
of information on Chemicals in International Trade by UNEP83.

10.4 In 1998 the Rotterdam Convention on Prior Information (PIC) consent

was adopted to help control the importation of banned or severely restricted
products into developing countries. Under PIC, officials in importing
countries must be informed by the exporters about the toxicological
characteristics and regulatory states of potentially hazardous chemicals before
shipment of the products to their region.

10.5 Over one hundred countries have banned or severely restricted, the import of
hazardous materials. However, a number of developing countries especially in
Asia and Africa have found an economic niche in importing hazardous wastes
from developed nations. The Basel Convention on the Control of
Transboundary movement of Hazardous wastes and their Disposal offers a
system by which to regulate transport and disposal of such wastes but also
encourages waste minimization and the implementation of sound
environmental management policy. A class of toxic chemicals, known as
Persistent Organic Pollutants (POPs) is made up of long – lasting, non-
biodegradable organic compounds that bioconcentrate in the food chain,
posing serious health risks to human populations. Under the Stockholm on
Persistent Organic Pollutants (POPs Treaty) adopted in December 2000 in
Johannesburg, South Africa, the following chemicals, namely, poly-chloriated
biphenyls (PCBs), dioxins and furans, aldrin, DDT, endrin, chlordane,
hexachorobenzene, mirex, toxaphene and heptachlor are to be gradually
phased out.

10.6 To preserve and equitably share the generic resource base of earth’s biological
diversity, the international community signed the 1992 UNCED in Rio de

83
Originally 1989 international agreement.

23
 Janeiro. The biodiversity agreement describes its main objective as “… the
conservation of biological diversity, the sustainable use of its components and
the fair and equitable sharing of the benefits arising out of the utilization of
generic resources, including by appropriate access to generic resources and by
appropriate transfer of relevant technologies…”

10.7 Global concerns about the rapid rate of loss and extinction of biological
species led to the adoption of the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) in March 1973.
Trade in specimens of all species threatened with extinction must be subjected
to particularly strict regulation in order not to endanger further their survival
and must only be authorised in exptional circumstances.

10.8 The growing worldwide consensus amongst researchers, scientists and policy
makers that earth’s protective stratospheric ozone was being depleted led to
the adoption in 1987 of the landmark Montreal Protocol on substances that
Deplete the Ozone Layer84. The Montreal Protocol has led to a worldwide
phase out of stratospheric ozone-depleting substances, including
chlorofluorocarbons (CFCs) and other halocarbon compounds.

10.9 The impact of global warming on human communities as a result of global

climatic change has several short-term and long-term local and regional
environmental consequences. Based on these concerns the international
community in 1998 drafted the Kyoto Protocol to the United Nations
Framework Convention on Climatic Change. The Kyoto Protocol calls on
ratifying states to reduce atmospheric emissions of greenhouse gases linked to
global warming through nationally based emission-reductions Programme and
the creation of international mechanisms for providing technical assistance to
developing countries85.

84
The 1987 Protocol has been amended severally in the 1990’s
85
The ratification of the Kyoto Protocol in Dec. 2004, 7 years after by China paved the way to its being
a binding treaty

24
10.10 Following the Chernobyl disaster and the failure of the USSR to provide
immediate information, the Vienna Convention on Early Notification of a
Nuclear Accident, 1986 was rapidly adopted, under the auspices of the
IAEA. The Convention provides that in the event of a nuclear accident, the
relevant state shall forthwith notify, directly or through the International
Atomic Energy Agency those states, which are or may be physically affected,
of the nuclear accident, its nature, the time of its occurrence and its exact
location. Such states must also be promptly provided with information
relevant to minimizing the radiological consequences86.

10.11 The increasing problem of the disposal of toxic and hazardous wastes and the
practice of dumping in the Third World with its attendant severe health risks
has prompted international action. The 1972 Oslo Convention for the
Prevention of Marine Pollution by Dumping from Ships and Aircraft
makes provision for a ban on the dumping of certain substances and for
controls to be placed on the dumping of others*. Also the London
Convention on the Prevention of Marine Pollution by Dumping of Wastes
and other matter, 1972 prohibits the dumping of wastes except as provided
in the Convention itself, which is strictly controlled.
10.12 The Organisation of African Unity (OAU) in 1988 adopted a resolution
proclaiming the dumping of nuclear and industrial wastes in Africa to be a
crime against Africa and its people**. In 1991 the OAU adopted the Bamako
Convention on the Ban of the Import into Africa and the Control of
Transboundary Movement and Management of Hazardous Wastes within
Africa87, under which parties are to prohibit the import of all hazardous
wastes.

86
Shaw Malcom N. op. cit p.798 (See Article 2 & 5)
*Listed in Annexes I & ii of the Convention
87
30 ILM, 1991 P.773 Shaw Malcom N. op. cit.

25
11.0 JUDICIAL INTERVENTIONS
Due to the absence of a right to environmental protection in the 1948 UNDHR
environmental issues have been raised incidentally, through the assertion of
protected rights, such rights that protect the integrity of persons and their
immediate surroundings. Consequently environmental claims brought before
the regional human rights convention controlling organs (especially the
European HR Commission and later the European Court of Human
Rights) have been formulated as violations of
1) The right to life.
2) The right to respect for privacy and family life.
3) The right to the peaceful enjoyment of property and
4) The right to obtain information concerning risk to health and safety88.

11.1 Subsequently after the 1972 Stockholm Convention and following from the
developments that are taking place through the intervention of national and
regional Courts in various parts of the world, the Courts are moving the right
to a healthy environment up the hierarchy of human rights by recognizing it as
a fundamental right89.

11.2 Though the European Convention on Human Rights does not directly address
the question of whether an individual has a right to a decent environment,
nonetheless the convention has been used by litigants as the basis of a number
of claims to environmental quality. In the landmark decision in the case of
Guerra & others V Italy90, the ECHR held that Italy failed to respect the
applicant’s right to privacy and family life in breach of Article 8 of ECHR, by
not providing essential information which would have enabled the applicants
to assess the environmental risks of living in proximity to a chemical plant.

88
Article 8(1) of the European Convention on Human Rights & Fundamental Freedoms provides that
“everyone has the right to respect for his private, his home and his correspondence”
** A fall out from the Nigeria’s Koko Toxic Waste Dumping experience.
89
Aceredo Mariana J. “The Intersection of Human Rights and Environmental Protection In the
European Court of Human Right”. NYU Environmental Law Journal p.464.
90
(1998) 26 EHRR 357

26
11.3 In the Guerra Case, the applicants lived only 1 kilometer from a chemical
plant, which was discharging large quantities of inflammable gases into the
environment. It was argued that the gases could cause chemical reactions
leading to the release of highly toxic substances. Various accidents had
occurred in the past including an accident in 1976 when 150 people were
hospitalized with serious arsenic poisoning. The applicants complained that
the ‘Seveso’ Directive on control of major Accident Hazards, requiring the
local authorities to advise the local population as to the relevant hazards from
the plant and the procedures and plans in place to safeguard the local
population, had not been complied with. The significance of the Guerra
decision lies in the courts’ expansive interpretation of the language of Article
8. in equating the right to receive information relating to the environment with
the applicants’ quality life; the Court implicitly found that a right to live in an
environment of quality be derived from the basic civil and political rights set
forth in the Convention91. The implication of the court’s approach in Guerra
is far reaching and unprecedented as it asserts that existing human rights
instruments may be interpreted to address environmental issues not
anticipated when these instruments were formulated.

11.4 The pre-Guerra jurisprudence under the European Convention on Human

Rights was not absolute in this assertion in relation to environmental pollution
and degradation. The first environmental decision under the Convention was
handed down in X&Y .V. Federal Republic of Germany92 where the
Commission denied the admissibility of an application filed by members of an
environmental protection group seeking an injunction against the use of
marshland property for military purposes. The applicants alleged that the
proximity of military activity to the villages in which they lived violated their
human rights, viz, the right to life, right to freedom from torture, and right to
91
Alceredo op. cit. p.438
92
App. No. 7407/76, 15 ECHR Dec. & Rep 161(1976)

27
 liberty under Article 2, 3, & 5 of the Convention. The Commission rejected
the applicants’ petition on the grounds that the Convention did not expressly
provide for a right to nature preservation. Accordingly, the Commission held
that the petition was incompatible with the rationae materiae of the
Convention as stated in Article 27(2)93.

11.5 Again in X .V. Federal Republic of Germany, the Commission denied

standing to an Association of environmental petitioners who protested the
construction of a nuclear power plant, requiring the Association to establish a
“legal interest of their own” distinct from that of its members in order to attain
locus standi94.

11.6 Realizing that without express environmental rights, direct claims against the
State would fail due to the Commission’s implicit deference to the contracting
parties actions, under the margin of appreciation doctrine, applicants
asserting environmental claims soon began alleging that environmental harm
interfered with their existing private property rights i.e. the right to privacy
and the right to the enjoyment of one’s own possessions as set forth in Article
8 of the convention.

11.7 In Arrondelle V United Kingdom, the Commission declared admissible a

complaint alleging that noise pollution interfered with the applicants’ right to a
fair and impartial trial, right to privacy, and the right to the enjoyment of one’s
own possessions under the Convention95. In the case the applicant, adjacent to
an airport and major roadway, petitioned the Commission after the local
District Council repeatedly refused to change the zoning use of the house to
light industrial commercial use. Citing the Department of the Environment’s
inspection report, which found that the location of the applicant’s home

93
Art 27(2) provides that “The Commission shall consider inadmissible any petition submitted under
Art 25 which it considers incompatible with the provisions of the present Convention, manifestly ill-
founded, or an abuse of the right of petition”
94
App. No. 74007/76 Opcit. @ page 270
95
(1) App. No. 7889/77, 5 EHRR 118,119(1982) IBID.

28
 subjected her to “intolerable stress”, the Commission indicated “a willingness
for the first time to recognise the link between noise pollution and human
rights96.

11.8 However in S v France97, the Commission declared inadmissible a complaint

alleging that the construction of a nuclear power plant in the applicants
neighbourhood violated the applicant’s right to privacy. In assessing the
applicant’s allegation under Article 1 of Protocol 1, the Commission relied on
a balancing test set forth in Sporrong & Jonnroth, which requires the court
“to determine whether a fair balance had been struck between the demands of
the interest of the Community and the requirements of the protection of the
individual’s fundamental rights98.

11.9 Powell & Rayner V. UK99 was the first case where the court explicitly
recognised the interrelationship of the environment and quality of life 100. Here the
court found that noise pollution from Heathrow Airport interfered with the local
residents’ quality of life i.e. enjoyment of their home and in analysing the
applicants’ claim, the court applied a balancing test to environmental issues,
weighing the competing interests of the individual against the community as a
whole to determine whether the interference was excused or justified and to see
whether the state had a positive duty to secure the applicants’ right to privacy. The
court also opined that in both contexts the state enjoys a certain margin of
appreciation in determining the steps to be taken to ensure compliance with the
Convention101. The court held that the interference of the applicants’ rights was
justified under both policy and regulatory analytic approaches. The airport was
necessary for the economic well being of the community and the state had enacted
reasonable and appropriate measures to comply with international aviation

96
Op. cit
97
App. No. 13728/88 65 EHRR Dec. & Rep.250,258,260 (1990)
98
Aceredo, Mariana T. loc. Cit. p. 469
99
12 Eur. Ct. H.R.355 (Ser.A) (1990)
100
Ibid. @ 363, 368.
101
Aceredo op cit @ p.474.

29
 standards to minimize the noise pollution. “Significantly the judgement of the
court in this case illustrates the courts’ reluctance to allow the environmental
concerns of an individual to take precedence over the broader economic concerns
of the wider community102.”

11.10 In a more recent case however Hatton & others V. UK103 a Chamber of
European Court found that the noise from increased flights at Heathrow
Airport between 4am and 6am violated rights of the applicants to respect for
their home and family life because the sleep deprivation this caused raised
health concerns. The Court therefore opined that in balancing individual rights
and the general welfare, the state cannot simply refer to the economic well-
being of the country “in particularly sensitive field of environmental
protection”. Instead, the state is required to minimize the interference by
trying to find alternative solutions and by generally seeking to achieve their
aims to human rights. The Court also found a violation of Article 13 being
right to remedy and awarded compensation to the applicants. In a separate
opinion Judge Costa speaking directly of “the right to a healthy environment”
noting that since the beginning of the 1970’s, the world has become
increasingly aware of the importance of environmental issues and of their
influence on peoples lives104.”

11.11 In Lopez Ostra V Spain105 the applicant who resided in the vicinity of a
privately owned and operated solid and liquid waste treatment plant,
petitioned the Court alleging that the odour and noise emissions from the
odour and noise emissions from the waste facility were causing health
problems and that she had suffered a violation of her right to privacy and
freedom from torture. The applicant supported these allegations by

102
Also see Kharturn & Otrs V. UK (unreported,1 July 1998) cited in Susan holf etal, Principles of
Environmental Law, 3rd Ecl. 2002. P. 478
103 nd
2 October 2001
104
Shelton, Dinah, Human Rights, Health & Environmental Protection. Linkages In Law and Practice,
H& HR Working Paper series NO. 1, 2002. P.19.
105
(1995) 20 EHRR 277.

30
 establishing a nexus between adverse effects on her health and the unregulated
operation of the facility. The Court found that as the emission exceeded
permitted limits they could endanger the health of citizens living nearby and
stated that “severe environmental pollution may affect individuals’ well-being
and prevent them from enjoying their private and family life adversely. The
court found in favour of the applicant and awarded compensation in the sum
of four million pesetas. In finding for the applicant, the court employed the
fair balance test set forth in Article 8(2) and examined whether the local
authorities struck ‘a fair balance between the interest of the town’s economic
well-being and the applicant’s effective enjoyment of her right to respect for
her home and her private and family life 106. Also the court found that the
Spanish authorities had failed to enforce domestic law by enabling the facility
to operate without a license and without compliance with the appropriate
national standards. This amounted to a breach of its affirmative duty to
ensure the respect for home and private life under Article 8(1)107.

11.12 Lopez Ostra represents a significant turning point for environmental claims
under the Convention regime. It was the first case in which “the organs of the
European Convention found a breach of the convention as a consequence of
environmental harm” and awarded compensatory damages as such because
“the applicant sustained damage due to Spain’s violation under Article 8, for
the depreciation of her old flat and the expense and inconvenience of moving,
and non-pecuniary damage for distress and anxiety at the situation and in
addition to the nuisance caused by the fumes, noise and smells 108.” The
finding is also extra-ordinary because it marked a departure from the general
practice envisaged by the Convention’s drafters, which presumed that

106
Ibid @ 297; Contrast with Balmer – Schafroth & Otrs V. Switzerland App. No. 2110/93, 25EHRR,
598, 603(1997)
107
The test to be applied is not whether the natural authority fulfilled the functions assigned to it by
domestic Law but whether the nation / countries took measures necessary for protecting the applicants
rights
108
Op cit

31
 determination of damages were matters to be remanded to the national judicial
bodies of the Contracting Parties109.

12.0 NATIONAL ENVIRONMENTAL JURISPUDENCE AND HUMAN

RIGHTS
More than one hundred Constitutions in the world guarantee a right to clean
and healthy environment, impose a duty on the State to prevent environmental
harm, or mention the protection of the environment or natural resources 110.
Ninety-two Constitutions impose a duty on the government to prevent harm to
the environment111. The constitutional rights granted are increasingly being
enforced by courts. In India for example, a series of judgments between 1996
and 2000 responded to health concerns caused by industrial pollution in
Delhi112.

12.1 In the case of Charan Lal Sahu V Union of India the Supreme Court of
India interpreted the right to life guaranteed by Article 21 of the Indian
Constitution to include the right to a wholesome environment. In the case of
Sub hash Kumar V State of Bihar113 the court observed that the “right to life
guaranteed by Article 21 of the Constitution includes the right of enjoyment of
pollution – free water and air for full enjoyment of life”.

12.2 South African courts also have deemed the right to environment to be
justiceable. In Argentina, the right is deemed a subjective right entitling any
person to initiate an action for environmental protection. The courts have held
that “the right to live in a healthy and balanced environment is a fundamental
attribute of the people. Any aggression to the environment ends up becoming

109
Aceredo loc cit.
110
Shelton, Dinah, Human Rights, Health & Environmental Protection: Linkages In Law & Practice;
Health and Human Rights Working Paper Series No. 1 2002.
111
Ibid.
112
Ibid. 4. AIR 1990 SC 1480(1991)
113
AIR 1991 SC 420, 1991(1) SCC 598

32
 a threat to life itself and to the psychological and physical integrity of the
person”114. Colombia also recognised the enforceability of the right to
environment. The Colombian court held in Fundepublico V Mayor of
Bugalagrade & Otrs115 that “it should be recognised that a healthy
environment is a sine qua non condition for life itself and that no right could
be exercised in a deeply altered environment”. In Costa Rica, the court stated
that the right to health and to the environment is necessary to ensure that the
right to life is fully enjoyed116.

12.3 In Nigeria, however, environmental protection from pollution and degradation

being part of state policy representing merely the fundamental objectives
and directive principles of state policy is non justiceable117 Section 20 of the
1999 Constitution outlines provision for the state to protect and improve the
environment and safe guard the water, air and land, forest and wildlife of
Nigeria. An environmental right has been defined as “the right of individuals
and peoples to an ecological sound environment and sustainable management
of natural resources conducive to sustainable development”
Section 33(1) of the Constitution states that “every person has a right to life
and no one shall be deprived intentionally of his life”. It would seem that this
right protects the right of citizens against environmental degradation for as
many have argued the combined effect of section 33(1) with section 20
confirm a right to a healthy environment. The question, which presents itself,
is the threat to life which environmental pollution portends for the Nigerian
citizenry. Is it logical to ascribe to our citizens the right to life and the dignity

114
Irazu Margarita V Copetro S.A www. Eldial. Com.
115
Juzgado Primeno Superior, Interlocutorio No. 032 Tulua, 19th Dec. 1991. www.com
116
Prsidente de la sociede Martene S.A V Municipalidad de Tibas, sala Constitutional de la corte
Supreme de justica. Decision No. 691894 of 251194.
117
In Archbishop Olubunmi Okogie V AG Lagos State(1981) IN.C.L.R p.218, it was held that the
provisions contained in Ch. 11 of the 1979 Constitution were subservient to the fundamental rights
provisions contained in Ch. IV & that specific laws for the enforcement of Ch. II must be enacted by
the legislature.

33
 of human person118, which is suspect when occasioned by environmental
degradation?119 The fight for survival which the Peoples of the Niger –Delta
are currently involved in against the devastating effect of oil and gas pollution
is one of self preservation and an attempt to protect their right to life and
dignity120.

12.4 Presently it appears that the common mode of seeking legal redress in cases of
environmental pollution and degradation in Nigeria is to claim under
Common Law or any legislation in force121 as at the time of pollution via the
torts of negligence, nuisance or under the rule in Rylands V Fletcher.
It is however submitted that where environmental litigations have succeeded
on tortuous claims, the courts have been rather economical in awarding
damages commensurate with the offence and the damage to the
environment122. The attitude of the courts has always been to shield polluters
from damaging litigation where the utility of the enterprise involved is
sensitive and vital to the growth and development of the nation123.
Compensation payable in the event of a successful claim has to a large extent
been negligible partly due to the failure to accord the right to a safe and decent
environment the status it deserves in law and in fact124.

12.5 In Umudje & Anor. V. Shell Petroleum Development Company (Nig.)

Limited125, the Appellant claimed 50,000 pounds as fair and reasonable
compensation for the damage done to the farmland, fishing ponds and lakes

118
Sect. 34 1999 Const. Of Nigeria.
119
Onyido J.C., “The Right To Safe Environment” Journal of Finance & Investment Law Vol. 8. Nos.
1-2, 2004, p.6c.
120
Vide attached appendix for Account.
121
E.g. Land Use Act (CAP 200) LFN 1990, Petroleum Act(CAP350) LFN 1990, Oil Pipe Lines Act
(CAP 338) LFN 1990 Mineral Act(CAP 226)LFN 190.
122
See (i) Seismograph Service (Nigeria) Ltd. V Ogbeni (1976) 4SC85 (ii) Shell Petroleum Devt. Of
Nig. Ltd. V Chief Otoko & Otrs, 6NWLR(P.159, 693) (iii) EIF Nig. Ltd. V Opera Sllo & Otrs (1994)
6NWLR(P.350) 258SC.
123
Onyido, J. C. Op cit. P.67.
124
Ibid. @ 68
125
(1976) 4SC85.

34
 against the Respondents. The Trial Court awarded 7000 pounds as damages.
While the Supreme Court on appeal slashed the award to 6,000 pounds.

12.6 In Seismograph Services (Nigeria) Limited V Ogbeni126, the Respondent

claimed from the Appellants the sum of 1,000 pounds as special and general
damages for carrying out oil exploration exercise which damaged his (the
Respondent’s) building. The Trial Court awarded 350 pounds as damages. The
Supreme Court upturned the judgement of the Court of first instance saying
that the Respondent was not entitled to damages altogether.

12.7 Prior to the Koko Dump Incident in 1987 there was limited consciousness on
the protection of the environment and to all intents and purposes there where no
proper environmental protection laws in Nigeria127. However after the Koko
incident128 the Federal Government swiftly enacted a number of laws on
environmental protection some of which are:
1. Federal Environmental Protection Agency (FEPA) Act (1991).
2. Environmental Impact Assessment (EIA) Act. (1992).
3. Hazardous Waste Criminal Provision Act (1988) and
4. The Pollution Abatement and Facilities Generating Regulation Act
(1991). Section 19 of the Act outlines restrictions on release of toxic
substances into Nigeria’s ecosystem, the pollution maintaining
requirements for industries, the strategies for waste reductions,
requirements for environmental audits and penalties for contravention.

12.8 It follows therefore and flowing from Sections 20 and 33 of the 1999 Nigerian
Constitution that it is the intendment of the law to guaranty a healthy state and

126
1976 4SC85
127
The Public Health Act 1917, Mineral Act 1969, the Petroleum Act, 1969, Publication Health Act
1970, the Oil in Navigable Waters Act, 1968, the Endangered Species Act 1986 e.t.c. were all aimed at
maintaining a healthy environment but was inadequate to the extent that they did not fully appreciate
the magnitude of the risk and damage to which their violation posed to the society and mankind in the
short & long term.
128
18,000 drum of hazardous toxic wastes were illegally imported into Nigeria from Italy, stored at the
Koko Port under the management of Sunday Nana.

35
 viable environment that is conducive to a sustainable growth and
development. The right of the citizenry to a healthy and pollution free
environment is reinforced by the obligations assumed by Nigeria under
numerous international instruments especially the African Charter on
Human and People’s Rights. By the authority of Abacha V Gani
Fawehinmi129, Article 24 of the African Charter On Human and Peoples
Rights can be invoked by any Nigerian citizen who alleges an infraction - of
his fundamental rights and the enforcement of his right to a satisfactionary
healthy and pollution free environment.

12.9 In August 1990, the Ogoni elders of the Niger – Delta signed and proclaimed
the Ogoni Bill of Rights which called for the “political control of Ogoni
affairs by Ogoni people, control and use of Ogoni economic resources for
Ogoni development, adequate and direct representation as the right for Ogoni
people in all Nigerian national institutions and the right to protect the Ogoni
environment and ecology from further degradation130.

12.10 During the 1990’s the Courts repeatedly dealt with human rights and the
environment question in various oil related litigations. One such case is the
Ken Saro – Wiwa, President of MOSOP131 and 8 others132 where the Ogoni
people claimed that excessive crude oil exploration activities had destroyed
agricultural land and resultant oil spillage had destroyed a lot of flora and
fauna in Ogoni Land. That many rivers had been polluted, thereby causing the
death of many aquatic animals. They further claimed that the air and water
pollution arising from gas flaring and oil spillage made the area very
hazardous for habitation. Also that the environmental degradation had
adversely affected the economic potentials and manpower resources of Ogoni
Land133.

129
(2000) 4 S.C (PART 11) pg. 1
130
www.com The Ogoni were admitted in UNPO on 19th January 1993.
131
The Movement of the Survival of the Ogoni People.
132
Unreported, (1995)

36
13.0 STATE RESPONSIBILITY AND THE ENVIRONMENT.
The principles of state responsibility dictates that States are accountable for
breaches of international Law. Customary international law imposes several
important fundamental obligations upon States in the area of environmental
protection. The view that international law supports an approach predicated
upon the absolute territorial sovereignty, so that a State could do as it liked
irrespective of the consequences upon other States has long been
discredited134. The basic duty upon states is not so to act, as to injure the rights
of other States135.

13.1 In the Trial Smelter Case136, which involved a dispute between Canada and
the United States over sulphur dioxide pollution from a Canada smelter built
in a valley shared by British Columbia and the State of Washington which
damaged trees and crops on the American side of the border, the Tribunal
noted that.
“…Under principles of international law, as well as law of the US,
no state has the right to use or permit the use of territory in such a
manner as to cause injury by fumes in or to the territory of another
or the properties or persons therein, when the case is of serious
consequence by clear and convincing evidence”
The International Court reinforced this approach, by emphasising in the Corfu
Channel Case137 that it was the obligation of every State not to allow
knowingly its territory to be used for acts contrary to the rights of other
States138.

133
Internet source: Following a petition to the National Assembly, the Senate in 2005 awarded N500
billion Compensation against shell & in favour of the Ogoni’s for the environmental damage and
degradation through the oil exploration and exploitation by shell in Ogoni Land.
134
Shaw Op cit p. 760
135
Ibid. See Island of Palmas case 2 RIAApp829,839(1928) where it was held that the concept of
territorial sovereignty incorporated an obligation to protect within the territory the rights of other
states.
136
33 AJIL 1939 P. 182 & 33AJIL 1941 P. 315.
137
ICJ reports 1949 pp 4, 22
138
Shaw Op cit. p.761

37
13.2 It is sometimes argued that the appropriate standard for the conduct of States
in the area of environmental protection is that of strict liability139, that is,
states are under an absolute obligation to prevent pollution and thus liable for
its effect irrespective of fault140. Though the leading cases on this standard are
inconclusive in the Trial Smelter Case, however, Canada’s responsibility was
accepted from the start, the case focusing upon the compensation payable and
the future operation of the smelter141 while the strict theory was not apparently
accepted in the Corfu Channel Case.

1303 In the Trial Smelter Case, the Tribunal focused on the need to show that the
matter was of ‘serious consequence’, while Article 1 of the Convention on
Long-Range Transboundary Air Pollution 1979 provides that the pollution
concerned must result in deleterious effects of such a nature as to endanger
human health, harm living resources and ecosystems and material property
and impair or interfere with amenities and other legitimate uses of the
environment142.
As far as the range of interests injured by pollution is concerned, the Trial
Smelter Case focused upon loss of property. Later definitions of pollution in
international instruments have broadened the range to include harm to living
resources or ecosystems, interference with amenities and other legitimate uses
of the environment or the sea. Article 1(4) of the Convention on the Law of
the Sea, 1982 defines pollution of the marine environment as the ‘introduction
by man, directly or indirectly, of substances or energy into the marine
environment… which results or is likely to result in … deleterious effects 143.’
The type of harm that is relevant clearly now extends beyond damage to

139
Ibid.
140
This is also referred to as polluter pay (ppp) principle in environmental Law.
141
Shaw Ibid
142
Op. cit.
143
See also Art 1(2) of the Vienna Convention on the Ozone Layer 1985; Art 1(1) Climatic Change
Convention on Civil Liability for Environmental Damage 1993.

38
 property, but problems do remain with regard to general environmental injury
that cannot be defined in material form144.

14.0 CONCLUSION.
From the foregoing, it should be apparent that environmental and human
rights are inextricably linked; to talk about one implies the other. The demands
for a safe pollution - free and healthy environment, as coming within the
scope of human rights, have to a large extent been propagated by the
developing countries of the south against the culture of industrialized
countries of the North, a culture directed at economic growth based on mass
production, mass consumption and mass disposal of waste materials, all of
which amount to a clear breach of the fundamental rights of the poorer
countries145. One of the most important consequences of incorporating human
rights principles within an environmental scope is to provide victims of
environmental degradation the possibility of access to all round justice. Given
the occasional helplessness suffered by victims of environmental degradation,
“linking human rights and the environment brings such victims closer to the
mechanisms of protection that are provided by human rights law.” As we
increasingly recognise the impact of a polluted and degraded environment on
human health and well-being, we are better placed to adjust our policies and
cultural practices to reflect our enhanced understanding. Consequently, we
should be able to protect human rights and human dignity within its broader
social, economic and cultural context by drawing from and contributing to
those who are actively engaged in the environmental and public health arenas.
Eventually this will lead to the articulation of a more integrated approach to
dealing with socio-economic and environmental problems, encouraging the
development of a sustainable model for the preservation of biological

144
Security Council Resolution 687(1991) declared that Iraq was liable under International Law
interalia “for any direct loss, damage, including environmental damage and the depletion of natural
resources” occurring as a result of the unlawful invasion & occupation of Kuwait.
145
The role of African countries in this respect must have informed the H/Q of UNEP’S location in
Nairobi, Kenya.

39
 resources and natural ecosystems, for the use and enjoyment of both present
and generations yet unborn146.

15.0 PARTING REMARK

Of the estimated half billion biological organisms that are believed to
have existed over the past 600 million years, only a fraction (1-10%) of
these species still exist today147. Environmental rights are human rights
and our right to protect. If the flora, fauna and fishes die, we die.

REFERENCES

Acevedo, M.T. (1999) The Intersection of Human Rights and Environmental

Protection In the European Court of Human Rights,NYU Environmental Law
Journal,Volume 8

Ahmed, A.K. (2003). Environmental Protection,Public Health and Human

Rights, An integrated Assessment (internet source)

Dinah, S. (2002) Human Rights Health & Environmental Protection: Linkage

In Law & Practice; Health and Human Rights Working Paper
Series, No.1

Kefsentni Report (1994) UN Doc.E/CN4/Sub.2/1994/9, July 6

Onyido, J.C. (1992) The Right To A Safe Environment, Finance

& Investment Law, Volume 8, No. 1-2

Oyebode, A. (2003) United Nations and Protection of Human

Rights In Africa, International Law & Politics: African Perspective, Bolabay
Publications, Lagos

Sabharwal, Y.K. (2004) Human Rights and the Environment

(internet source)

Shaw, M, (2005), International Law, Cambridge University Press, 5th Edition

146
Ahmed A. K Op cit p.23
147
Sabharwal YK. Op cit.

40
 Thornton, J & Beckwith S. (1997) Environmental Law, Sweet &
Maxwell, London

Uchegbu, S.N. (1998) Environmental Management & Protection,

Precision Publishers, Enugu

U.N. (1993) Climatic Change Convention On Civil Liability for

Environmental Damage

U.N. (1992) United Nations Conference on the Environment and

Development, Rio de Jeneiro

U.N.(1972) Stockholm Declaration of The United Nations Conference on the

Human Environment Stockholm Conference, 16th June

U.N (1985) Vienna Convention on the Ozone Layer Article 1 (1)

WHO Report (1992) Our Planet Our Health, Report of the

Commission on Health and Environment

CASES

Elf Nig.Ltd. V Opera Silo & Otrs (1994) 6 NWLR, p. 350, 258 SC

Fundepublico V Mayor of Bugalagrade & Otrs (1991) Jugzado

Primeno Superior, Interlocutorio No. 032, 19th December

Guerra Otrs V Italy (1998) 26 EH RR 357

Ken Saro-Wiwa, President of Mosop & 8 Otrs (1995) Unreported

Lopez Ostra V Spain (1995) 20 EH RR 277

Rylands V Fletcher (1866) L.R. 1 Exch 265

Seismograph Service (Nigeria) Ltd. V Ogbeni (1976) 4 SC 85

Shell Petroleum Development of Nig. Ltd. V Chief Otoko & Otrs

(1990) 6 NWLR pp. 159, 693.

Sub hash Kumar V State of Bihar (1991) AIR SC 420

41
Trail Smelter Case (1939) 33 AJIL p.182

42