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Temps nuageux

Principle of
non-regression

If the principle of non-regression is an emerging principle, the idea behind it is old. In its modern legal translation, this principle concerns not the environment itself, but the legislative and regulatory framework protecting the environment. As such, it may be linked to the duty to adopt effective legislation.

In national law, today the right to a clean, healthy, and sustainable environment is generally accepted, as there are currently 178 States around the world that recognise it in their constitutions or in sub-constitutional regulations. Nonetheless, there is a gap at the international level: today this right is essentially affirmed in major environmental texts with no legal force. Thus, the first principle of the Stockholm Declaration states that "Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being". More modestly, the first principle of the Rio Declaration states that "Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature”. Finally, the Johannesburg Declaration on sustainable development also indirectly raises the point, in particular in the objective of its Principle 18, which is to ensure "access to such basic requirements as clean water, sanitation, adequate shelter, energy, health care, food security, and the protection of biodiversity".

Alongside these major, symbolic international documents are some sector-specific international and regional conventions on the right to live in a healthy environment, for a limited domain or geographic area.Thus, in its first article, the Aarhus Convention protects "the right of every person of present and future generations to live in an environment adequate to his or her health and well-being". This is also the case with some regional conventions on human rights. Article 24 of the African Charter on Human and People’s Rights states the right of all peoples to "a general satisfactory environment favourable to their development". Article 38 of the Arab Charter of Human Rights, in turn, protects the right of each person "to a healthy environment".

In the inter-American system, in addition to the American Convention on Human Rights, article 11 of the Protocol of San Salvador calls for the "right to live in a healthy environment". Finally, while the right to a healthy environment is absent from the European Convention for the Protection of Human Rights and Fundamental Freedoms adopted in 1950, the Strasbourg Court has since used it to afford indirect protection through the guaranteed rights, based on a dynamic interpretation of the Convention. In particular, since the Lopez Ostra v. Spain case of December 9th, 1994, in which the applicant complained of the passivity of the authorities with respect to the nuisance caused by a purification plant near her home, it considers that the right to private and family life protected in article 8 of the Convention includes a right to be protected against serious damage to the environment as this may "affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely".

 

The United Nations Commission on Human Rights has stressed that the right to a healthy environment formalises the close ties between human rights and the protection of the environment. The Inter-American Court has also clearly asserted the relationship between the environment and human rights in a recent advisory opinion. For Alexandre Kiss, environmental law and the right to the environment have the same objective, namely "protecting humans with an appropriate living environment". The difference is in the implementation, by public authorities on the one hand and by individuals on the other; this can prove to be beneficial in terms how effective the protection is.

 

The existing broad consensus concerning this right leads to the idea that the moment has come for it to be clearly acknowledged at the international level. It is to this end particularly revealing that most of the documents resulting from initiatives by civil society in favour of the protection of the environment mention this right, whether it is the Earth Charter, the draft Covenant on the Human Right to the Environment, the International Covenant on Environment and Development or the IUCN World Declaration on the Environmental Rule of Law.

 

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