PART 1 – CONSIDERATION OF THE TERMS OF REFERENCE Right to an environment of a particular quality Question Whether a right to an environment of a particular quality exists either in international human rights instruments, or in customary international law Response The ACJ is of the view that a human right to an environment of a particular quality does not yet exist in international human rights instruments or in customary international law. The developments described below demonstrate that there is clear international concern about the state of the environment and its effect on humankind. However, while there have been attempts to enunciate a principle about environmental harms affecting human rights at the international level, there remains a lack of consensus amongst states and regions about whether, and if so, how such a right should be articulated. 4 Background Treaty Law International human rights instruments – the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) – codify fundamental human rights including some that rely on environmental quality for their full realisation. Examples of the latter include the right to life and the right to health. A number of other human rights instruments include provisions that refer to, or rely on, environmental quality for their full enjoyment. However, existing international human rights instruments do not articulate, nor can they be used to characterise exhaustively, a distinct human right to an environment of a particular quality. 5 Customary Law There are a number of existing principles of customary international law that relate to the environment. Customary international law places an obligation on states to prevent extraterritorial harm, including environmental harm. First enunciated in the Trail Smelter Case, 6 this principle has since been supported by judicial and arbitral decisions, such as the International Court of Justice’s (‘ICJ’) Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons which noted the importance of respect for the environment for human survival. These cases have not however articulated a specific right to an environment of a particular quality.7 Trends Significant developments in environmental law have led to the enunciation of a number of rules and principles. These rules and principles, though perhaps not yet universally endorsed, enjoy 4 Human Rights and the Environment: Reference Paper. Asia Pacific Forum of National Human Rights Institutions (APF), 2007. pp. 29–30. 5 Ibid 26. 6 Trail Smelter Case. 3 RIAA 1905. Ref. also: Sands, Principles of International Environmental Law, Cambridge 2003. p. 26. 7 [1996] ICJ Rep 226 @ 241. -9-