The protection of the environment, through environmental law and standards, has long played an important role for the protection of ESC rights. In fact, the right to a safe and healthy environment is included in various conventions and constitutional enumeration of rights. Principles, such as the precautionary or prevention principles, which have their genesis in environmental law have been generally invoked outside of the environmental law context.
In addition, a wide array of violations of ESC rights are directly linked to environmental pressures and degradation. These typically include the pollution of water sources, soils or air that deeply impact on the rights to water, food, health, adequate standard of living and work. However, the dramatic impacts and growing awareness of global environmental questions, including climate change, has conferred a new dimension to the relationship between ESC rights and environmental law.
At the regional level, the African Commission has used the right to a safe and healthy environment as a conjunctive and instrumental right for the protection of the right to housing and food, particularly in the SERAC and CESR v. Nigeria case. In this case the African Commission found that the Federal Republic of Nigeria had violated several rights of the African Charter on Human and Peoples’ Rights, inter alia, because the government failed to prevent ecological degradation in Ogoniland, resulting from operations of the State oil company, which caused health problems to the Ogoni people.
In April 2013, the Inter-American Commission of Human Rights received a petition filed by Inuit communities against Canada for violations of their rights due to emissions of black carbon causing Arctic Melting. As mentioned above, the increasingly tangible impact of climate change and the causal link between carbon emissions and global warming is likely to give rise to expansive litigation related to ESC rights in the future. Meanwhile, some fundamental legal and procedural obstacles need to be overcome to effectively undertake such litigation. For instance, there is a challenge in attributing liability or responsibility to defined and individual States for harm resulting from global warming or to define and enforce effective remedies. In any case, practitioners interested in ESC rights litigation will want to closely follow developments in this field.
At the domestic level, a variety of cases demonstrate the relevance of environmental issues and law to the protection of ESC rights. The decisions summarized below are only some examples of this variety.
→ Mendoza Beatriz Silva et al v. State of Argentina et al, File M. 1569. XL
→ South Fork Band Council and others v. United States Department of the Interior
→ Amparo No. 631/2012 (Independencia Aqueduct)
- 219. See Article 7The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: (a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; (ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant; (b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence; (d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidaysof the ICESCR guaranteeing safe and healthy working conditions. See also at national level, article 14 of the Constitution of Ecuador or article 24 of the Constitution of South Africa. See also Preliminary Report of the United Nations Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, J.H. Knox, UN Doc.A/HRC/22/43 paras. 12-17.↵
- 220. Precautionary principles are used in cases such as in the fields of public health and food safety.↵
- 221. SERAC and CESR v. Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96 (2002). Full decision accessible at: http://www.achpr.org/communications/decision/155.96/, for a summary of the case visit: http://www.escr-net.org/docs/i/404115↵
- 222. The Federal Republic of Nigeria was found in violation of Articles 2 (right to freedom from discrimination), 4 (right to life), 14 (right to property), 16 (right to health), 18(1) (protection of the family and vulnerable groups), 21 (right to free disposal of wealth and natural resources) and 24 (right to a general satisfactory environment) of the African Charter on Human and Peoples’ Rights. The Commission also held that the implied right to housing (including protection from forced eviction), which is derived from the express rights to property, health and family was violated by the destruction of housing and harassment of residents who returned to rebuild their homes (para 62). Finally, destruction and contamination of crops by government and non-state actors violated the duty to respect and protect the right to food that is implicit in the right to life, the right to health, the right to economic, social and cultural development (para. 66).↵
- 223. Petition to the Inter-American Commission on Human Rights seeking relief from violations of the rights of arctic Athabaskan peoples resulting from rapid arctic warming and melting caused by emissions of black carbon by Canada available at http://www.ecojustice.ca/files/aac-petition-april-2013/at_download/file↵