6 "Third generation rights"
199. We have considered during the course of
our inquiry whether any so-called "third generation rights"
should be included in a UK Bill of Rights. Third generation rights
are rights which have attained international recognition as human
rights but which are not easily classified as either civil and
political rights or economic and social rights. They include rights
such as the right to self-determination, the right to natural
resources, the right to economic and social development and the
right to intergenerational equity and sustainability.
200. The nature of many of these rights makes
it difficult to enshrine them in legally binding documents, and
for the most part they are therefore the subject of standards
which are not, strictly speaking, legally binding. There is one
right, however, which is commonly referred to as a third generation
right, but which is increasingly taking legal form in international
human rights instruments and constitutions throughout the world:
the right to a healthy environment.
201. When asked whether a Bill of Rights should
include so-called "third generation rights", such as
environmental rights, Baroness Hale said:
My shopping list did not include environmental rights.
That is one reaction to your question, largely because I think
the British way is to do things in small stages, is it not, and
not to leap from a Convention which is mostly along the lines
of the ones we were talking about into these very third generation
rights which would be a huge leap.[180]
202. We do not agree that the inclusion of environmental
rights would be a "huge leap" bearing in mind the extent
to which both the right to life in Article 2 ECHR and the right
to respect for private life and home in Article 8 ECHR have already
been interpreted as including certain environmental rights.
203. The European Court of Human Rights (ECtHR)
has given clear guidance that both Article 2 (the right to life)
and Article 8 (the right to respect for the home, private and
family life) include environmental protections.
204. For example, in a case dealing with the
environmental impact of smells, noise and polluting fumes caused
by a waste treatment plant, the ECtHR has recognised that:
Severe environmental pollution may affect individual's
well-being and prevent them from enjoying their homes in a way
as to affect their private and family life adversely, without,
however, seriously endangering their health.[181]
205. The ECtHR has also recognised that people
have a right to accessible information about Government engagement
in activities which are hazardous to their health. The UK already
has an obligation under the ECtHR to take action to meet certain
dangerous environmental risks or hazards. So, for example, if
the UK were to fail to take adequate action in relation to known
environmental hazards at a rubbish tip, where individuals subsequently
were injured or killed, Article 2 ECHR would provide a remedy
for the victims.[182]
206. In addition, politicians across Europe have
begun to recognise the need to for an enforceable right to a clean
and safe environment. For example, in June 2008, the President
of the Parliamentary Assembly of the Council of Europe, Lluís
Maria de Puig, called for a legally enforceable Europe-wide right
to a healthy and sustainable environment. He said:
Europeans are being asked to make major changes to
their lifestyles - but in return, they should be entitled to a
legal guarantee that their governments are also doing everything
in their power to ensure a viable, healthy and sustainable environment.[183]
207. The United Kingdom has already recognised
its responsibility to protect the environment for future generation
in its international obligations. For example, the UK is a signatory
to the UNECE Aarhus Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental
Matters, which confirms "the right of every person of present
and future generations to live in an environment adequate to his
or her health or well-being".[184]
208. The constitutions of various States also
contain a right, equivalent to that of a right to a "clean"
and "safe" environment. For example:
- There is a right to enjoy "an
environment suitable for the development of the person" (Article
45(1) of the Spanish Constitution)
- "Everyone shall have the right to a healthy
and ecologically balanced human environment and the duty to defend
it" (Article 66 of the Portuguese Constitution)
- "All peoples shall have the right to a general
satisfactory environment favourable to their development"
(Article 24 of the African Charter)
- "Everyone shall have the right to live in
a healthy environment" (Article 11(1) of the 1988 San Salvador
Protocol to the American Charter of Human Rights)
- "Everyone has the right to an environment
that is not harmful to their health or wellbeing" (South
African Bill of Rights, s. 24).
209. We therefore believe that certain carefully
defined environmental rights have now attained a sufficiently
recognised status to be made a legally binding human right. We
note that in a recent case in the International Court of Justice
it was acknowledged that 'the protection of the environment is
likewise a vital part of contemporary human rights doctrine, for
it is a sine qua non for numerous rights such as the right
to health and the right to life itself'.[185]
Conclusion
210. In our view there is a
strong case to be made for including the right to a healthy and
sustainable environment in a UK Bill of Rights. The briefest consideration
of the status of the right in international instruments and national
constitutions shows that the right has evolved into one which
is clearly capable of legal expression. We believe that a UK Bill
of Rights should treat it as one of the social rights for which
a particular legal regime can be devised. We have therefore included
it in our outline Bill of Rights and Freedoms defined as follows:
A healthy and sustainable environment
Everyone has the right to an environment that is
not harmful to their health.
Everyone has the right to information enabling them
to assess the risk to their health from their environment.
Everyone has the right to a high level of environmental
protection, for the benefit of present and future generations,
through reasonable legislative and other measures that -
(i) prevent pollution and ecological degradation;
(ii) promote conservation and
(iii) ensure that economic development and use of
natural resources are sustainable.
We recommend that the forthcoming
consultation on a Bill of Rights should expressly include the
right to a healthy and sustainable environment amongst the rights
treated as candidates for inclusion in a UK Bill of Rights.[186]
180 Q 233. Back
181
Lopez-Ostra v Spain (1995) 20 EHRR 277, para. 51. Back
182
Oneryildiz v Turkey App. No. 48939/99, Judgment of 30 November
2004 (Grand Chamber). See also Chamber Judgment, 18 June 2002. Back
183
Press Notice, Council of Europe, PACE President urges a legal
'right to a healthy environment', 4 June 2008. Back
184
Article 1. Back
185
Case concerning the Construction of the Gabcikovo-Nagymaros
Project (Hungary v. Slovakia), (1998) 37 ILM 162, at 206 (Judge
Weeremantry). Back
186
The inclusion of such a right in a UK Bill of Rights would make
a real practical difference. In Hunter v Canary Wharf [1997]
AC 655, for example, which concerned interference with the enjoyment
of neighbouring land caused by the construction of Canary Wharf,
the House of Lords decided, by a 4-1 majority, that a person could
not bring an action for private nuisance unless they had a proprietary
interest in the land affected. Mere residence was not enough.
Lord Cooke, dissenting, pointed out that various international
human rights standards protect the home against nuisances regardless
of whether the person affected has a proprietary interest or merely
lives on the land in question, and thought it legitimate for the
courts to develop the common law of nuisance so as to allow a
resident to bring a nuisance action. The inclusion of a right
to a healthy environment in a UK Bill of Rights, combined with
the duty on the courts to develop the common law so as to be compatible
with the Bill of Rights (see chapter 8 below), would require the
minority approach in the Canary Wharf case to be followed. Back
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