A/HRC/22/43
41.
Much of this analysis has come from the regional human rights tribunals. For
example, the African Commission on Human and Peoples‟ Rights has said that Government
compliance with the spirit of the rights to health and to a satisfactory environment in the
African Charter must include “ordering or at least permitting independent scientific
monitoring of threatened environments, requiring and publicising environmental and social
impact studies prior to any major industrial development, undertaking appropriate
monitoring and providing information to those communities exposed to hazardous materials
and activities and providing meaningful opportunities for individuals to be heard and to
participate in the development decisions affecting their communities”.28 In a series of cases
construing the right to privacy, the European Court of Human Rights has similarly held that
States must follow a decision-making process that includes “appropriate investigations and
studies”, gives the public access to information, and provides those concerned effective
legal remedies.29 In construing indigenous and tribal property rights, the Inter-American
Court of Human Rights has stated that the State must consult with the community regarding
any proposed concessions or other activities that may affect their lands and natural
resources, ensure that no concession is issued without a prior assessment of its
environmental and social impacts and guarantee that the community receives a reasonable
benefit from any such plan if approved. With respect to “large-scale development or
investment projects that would have a major impact”, the State must do more than consult;
it must obtain the community‟s “free, prior, and informed consent, according to their
customs and traditions”.30
42.
Making this connection can create a kind of virtuous circle: strong compliance with
procedural duties produces a healthier environment, which in turn contributes to a higher
degree of compliance with substantive rights such as rights to life, health, property and
privacy. The converse is also true. Failure to meet procedural obligations can result in a
degraded environment, which interferes with the full enjoyment of other human rights.
43.
To be clear, a relationship of this type between substantive rights and procedural
duties does not preclude the possibility of other human rights obligations relevant to
environmental protection. Obligations to respect procedural rights obviously have legal
bases separate from any such obligations arising from environmental threats to substantive
rights. And environmental rights may also give rise to certain minimum substantive
environmental standards that apply regardless of whether procedural requirements are
followed. For example, the Committee on Economic, Social and Cultural Rights, in its
general comment No. 15 (2002) on the right to water, has construed the right to health as
encompassing “taking steps on a non-discriminatory basis to prevent threats to health from
unsafe and toxic water conditions … States parties should ensure that natural water
resources are protected from contamination by harmful substances and pathogenic
microbes” (para. 8). The scope and content of the substantive components of environmental
rights like these also require further study.
28
29
30
14
African Commission on Human and Peoples‟ Rights, Ogoniland Case, para. 53.
Taşkin v. Turkey, para. 119.
Inter-American Court of Human Rights, Saramaka People v. Suriname, paras. 129 and 134. The
Special Rapporteur on the rights of indigenous peoples has also explained in a report to the Council,
in the context of extraction of natural resources from indigenous land, that requirements of
consultation and consent help to safeguard indigenous peoples‟ substantive rights, including rights to
property, health and culture (A/HRC/21/47, paras. 49 and 50).
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents