CYIL vol. 12 (2021)

jan lhotský

CYIL 12 (2021)

2.1 Regional and universal human rights instruments To start with, it needs to be said that the Universal Declaration of Human Rights of 1948 does not contain any references to the environment. Moreover, the European Convention on Human Rights of 1950 or its later protocols do not mention environmental rights either. However, due to several of its articles, such as the right to life or the right to respect for private and family life, the relationship between the Convention and the environment, which will be discussed in a separate chapter, is not easy to grasp. In addition, it is developing over time. Taking into account the Charter of Fundamental Rights of the European Union, which was created in 2000 and is therefore more up to date, it contains Article 37 titled Environmental Protection, which states that ‘ a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development .’ Nevertheless, in line with Article 51 para. 1, the provisions of the Charter are addressed to institutions of the EU and to the Member States only when they are implementing EU law. 4 Therefore, it needs to be stressed that the EU Charter is not an instrument that would grant environmental rights to individuals in general. After the human rights system under the Council of Europe, similar regional systems also grew in America and later in Africa. 5 The American Convention on Human Rights adopted in 1969 did not contain any reference to environmental rights either. Article 26, which obliges States Parties to adopt measures for progressive development in the area of economic, social and cultural rights, is considered to be the most relevant. Nevertheless, in 1988 the Protocol of San Salvador on economic, social and cultural rights was adopted in which Article 11, titled Right to a Healthy Environment, reads: ‘ (1) Everyone shall have the right to live in a healthy environment and to have access to basic public services. (2) The States Parties shall promote the protection, preservation, and improvement of the environment .’ However, this right under the San Salvador Protocol cannot be the subject of individual complaints and therefore it cannot be used for protection before the Inter-American Court of Human Rights. The African Charter on Human and Peoples’ Rights adopted in 1981 contains Article 24 which reads: ‘ All peoples shall have the right to a general satisfactory environment favorable to their development .’ When a later protocol adopted in 1998 established the African Court on Human and Peoples’ Rights, it was given the power to apply this environmental right contained in the Charter. Therefore, it can be observed that the later a regional instrument was created, the stronger the emphasis on the right to a healthy environment. Furthermore, there are a number of human rights instruments at the universal level which are intended for the whole world. The International Covenant on Civil and Political Rights adopted in 1966 does not include any references to the environment. Nevertheless, in a similar way as the European Court of Human Rights interprets the European Convention on Human Rights, the Human Rights Committee as a quasi-judicial body interprets the International Covenant on Civil and Political Rights. Therefore, environmental matters may become relevant if they are linked to rights included in the Covenant. For example, General 4 For different sources of human rights protection in the EU, see SCHÜTZE, Robert. Three ‘Bills of Rights’ for the European Union. Yearbook of European Law , vol. 30, no. 1, 2011. 5 See GRANT, Evadne. International human rights courts and environmental human rights: re-imagining adjudicative paradigms. Journal of Human Rights and the Environment , vol. 6, no. 2, 2015, pp. 165–173.

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