Value of a Human Right to an Environment of a Particular Quality Question 8: In the context of environmental harms to human life, what additional value would there be in having a specific right to environment? Response Despite the fact that a number of existing rights can be invoked in relation to environmental harms affecting human life, the ACJ considers that such an approach fails to afford a cohesive, comprehensive and effective framework for the protection of human life when affected by environmental harms. In addition, international and national environmental laws often foster a regulatory rather than a participatory or rights based framework. These laws may not sufficiently protect and promote the participation of individuals, communities and peoples in decisions on matters affecting the environment. The value in elaborating a human right to an environment of a particular quality therefore would be to ensure that the impact of the environment on the enjoyment of fundamental human rights is better recognised. Environmental disputes, once the preserve of a minority of scientists and environmentalists, then come within a broader framework and human rights become a legitimate consideration in relevant disputes about relevant environmental matters. 103 Furthermore, the existence of a defined human right provides an opportunity for proactive engagement prior to the violation of that right, avoiding the need for significant injury before action can be taken.104 Background Recognition of the link between human rights and the environment As previously stated, the importance of the environment to the realisation of human rights has been clearly articulated by ICJ Judge Weeramantry in his statement that damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments. 105 While not all commentators agree, with many cautioning against the proliferation of rights, the ACJ is not of this view. Nor are the 56 countries that recognise a right to a clean and healthy environment in their respective constitutions. Within the APF, the following States have constitutional provisions dealing with protection of the environment: Afghanistan, 106 India,107 Mongolia,108 The Kingdom of Nepal, 109 The Republic of 103 Boyle and Anderson, Human Rights Approaches to Environmental Protection. Oxford 1996. p. 26-27 Atapattu, Sumudu, “The Right to a Healthy Life or the right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment Under International Law”, 16 Tul. Envtl. L. J. 65. 105 Refer page 19 above. C G Weeramantry J, (separate opinion) Gabcikovo-Nagymaros Project (Hungary v Slovakia) 1997 ICJ 97 at 110; 37 ILM 162 at 206 (1998). 106 "the State shall adopt and implement the necessary measures for the protection of nature, natural wealth and reasonable utilization of natural resources, improvement of the living environment, prevention of pollution of water and air, and the conservation and survival of animals and plants”, (chap. II, art. 32) 107 “to endeavor to protect and improve the environment and to safeguard the forests and wild life of the country”, (Part IV, Article 48A). 108 “the citizens of Mongolia shall enjoy . . . the right to a healthy and safe environment, and to be protected against environmental pollution and ecological imbalance”, (Chapter Two, Article 16(2)). 104 - 30 -