CYIL vol. 15 (2024)

PETRA BAUMRUK Rights of the Child 52 (CRC), which refers to aspects of environmental protection in respect to the child’s right to health. Lastly, the Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries 53 of the International Labour Organization (ILO), which contains numerous references to lands, resources and environment of indigenous people. 54 3.2 Regional development and Agreements Two regional human rights treaties contain provisions that specify the link between human rights and the environment. Nevertheless, their effectiveness at the international level to create a customary right to environment seems rather doubtful. 55 These two regional instruments are the 1981 African Charter on Human and Peoples’ Rights 56 (ACHPR or the African Charter) and the 1989 San Salvador Protocol (the Protocol) to the 1969 American Convention on Human Rights (ACHR). 57 In addition, the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters should also be kept in mind while discussing regional development. The African Charter is the first binding instrument, although regional, to explicitly endorse the fundamental right to a clean environment but Article 24 provides that: ‘[a]ll peoples shall have the right to a general satisfactory environment favorable to their development’ 58 (emphasis added). However, a few problems arise from this provision. Firstly, it is unclear what constitutes a “peoples”. Secondly, it is not clear what is meant by “satisfactory environment” and finally the provision links environment with development. The ACHPR therefore defines the right to a healthy environment with reference to a collective subject “peoples” rather than “everyone” or “individuals”. This approach is rather characteristic of jurisprudence in third world countries and surpasses the traditional individual focus of human rights. 59 Thus, chapter one of the ACHPR “Human and Peoples Rights”, encompasses the right to satisfactory environment among other collective rights. This formulation corresponds to the African emphasis of the principal of solidarity and is not intended to subordinate human rights to peoples’ rights. Rather, human and solidarity rights are understood as complementary categories. As stated in the Preamble of the ACHPR: ‘the reality and respect of peoples’ rights should necessarily guarantee human rights.’ 60 52 Adopted on 20 November 1989. Entered into force 2 September 1990. Available online at: http://www2.ohchr. org/english/law/crc.htm (accessed 4 December 2022). 53 Adopted on 27 June 1989. Entered into force 5 September 1991. Available online at: http://www.ilo.org/ indigenous/Conventions/no169/lang--en/index.htm (accessed 4 December 2022). 56 Also known as the “Banjul Charter”. Adopted on 27 June 1981 by the Assembly of Heads of States and Governments of the Organization of African Union. Entered into force on 21 October 1986. Available online at: http://www.unhcr.org/refworld/docid/3ae6b3630.html (accessed 25 October 2012). 57 The American Convention on Human Rights, also known as the Pact of San José, was adopted on 22 November 1969 at the Inter-American Specialized Conference on Human Rights, in San José, Costa Rica. Available online at: http://www.oas.org/juridico/english/treaties/a-52.html (accessed 4 December 2012). 58 African Charter on Human and Peoples’ Rights (1981), Also known as the “Banjul Charter”. Adopted on 27 June 1981 by the Assembly of Heads of States and Governments of the Organization of African Union. Entered into force on 21 October 1986, Article. 24. 54 ILO Convention: op. cit ., for example Articles 2, 6, 7, and 15. 55 ATAPATTU, Sumudu: The Public Health Impact, p. 300.

59 HODKOVÁ, Iveta: op. cit ., p. 66. 60 African Charter: op. cit ., Preamble.

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