holding that realisation of the right to life encompassed the enjoyment of pollution-free water and air for full enjoyment of life. In addition to confirming the link between a healthy environment and the realisation of the right to life, the case is also important in that it recognises a positive obligation on the State to address environmental harms, including through the effective implementation of extant laws and policies. 49 Other courts have also pursued this approach. The Malaysian Court of Appeal has interpreted the right to life broadly as extending beyond mere existence to the quality of life, and ‘[including] the right to live in a reasonably healthy and pollution free environment’. 50 However, in a more recent case, the Malaysian Court of Appeal reinterpreted the right to life in a more restricted manner.51 These types of approaches are relatively novel and unique to a small number of jurisdictions.52 Consideration of the Right to Life and the Environment ICJ Judge Weeramantry has drawn a strong connection between the enjoyment of the right to life and the quality of the environment, stating that the protection of the environment is “a sine qua non for numerous human rights such as the right to health and the right to life itself”. 53 However, actual determinations on the relationship between the right to life and the environment have been limited. With regard to the UN Human Rights Committee, communications have frequently been declared inadmissible for technical reasons, such as a failure to exhaust domestic remedies. Notwithstanding this, the Committee has affirmed a connection between the condition of the environment and the right to life in a number of cases. 54 At the regional level, the European system has been reluctant to consider cases on the basis of the right to life. It has however held that severe environmental pollution may affect an individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their ‘private and family life’. This however highlights a unique focus by the European system on the right to respect for privacy, family life and the home. In the Inter-American system, the right to life has been interpreted broadly, the AICtHR having stated that the fundamental right to life includes not only the right of every human being not to be deprived of life arbitrarily, but also the right that s/he will not be prevented from accessing conditions of life that guarantee a dignified existence. This interpretation is peculiar to the InterAmerican system and may result in broader protections against environmental harms than those provided in other systems. Criteria relevant to assessing a potential breach of the right to life. Cases before the UN Human Rights Committee suggest a number of criteria applicable in the consideration of complaints alleging a breach of the right to life. These include that: • • • • the risk to life must be actual or imminent; the applicant must be personally affected by the harm; environmental contamination with proven long-term health effects may be a sufficient threat, however, in this context, there must be sufficient evidence that harmful quantities of contaminants have reached, or will reach, the human environment; a hypothetical risk is insufficient to constitute a violation of the right to life; and 49 Subhash Kumar v State of Bihar (1991) AIR SC 420; (1991) (1) SCC 598 in Razzaque, above n 346. Asia Pacific Forum, n 4. 123. 51 Ibid 124–5. 52 Ibid 58–9, 65–6. 53 C G Weeramantry J, (separate opinion) Gabcikovo-Nagymaros Project (Hungary v Slovakia) 1997 ICJ 97 at 110; 37 ILM 162 at 206 (1998). 54 Communication No. 35/1978, U.N. Doc. CCPR/C/12/D/35/1978. E.W. et al. v the Netherlands, Communication No. 429/1990, U.N. Document CCPR/C/47/D/429/1990, Aalbersberg et al. v the Netherlands, Communication No. 1440/2005, U.N. Document CCPR/C/87/D/1440/2005. Bordes and Temeharo v France, Communication No. 645/1995, U.N. Document CCPR/C/47/D/645/1995 at para 5.5. E.H.P. v Canada, Communication No. 67/1980, U.N. Document CCPR/C/17/D/67/1980 at para 8. 50 - 19 -