Joint Committee on Human Rights Twenty-Ninth Report


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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