CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ LINKING HUMAN RIGHTS AND THE ENVIRONMENT … Both the right to health and the right to environment were asserted at the African Commission on Human Rights (the African Commission) in a case that contains the first full exposition of a human rights approach to environmental protection. The case concerns environmental degradation on Ogoniland, Nigeria, caused by an oil company. Thus, the African Commission acting on a petition, filed by two nongovernmental organizations on behalf of the people of Ogoniland, found Nigeria to have breached its obligations to respect, protect, promote and fulfill rights guaranteed by Article 16 of the African Charter that obliges states to: ‘take the necessary measures to protect the health of their people’ and thus also violated Article 24. 61 Hence, the Ogoni case is a remarkable decision that goes further than any other in the substantive environmental obligations it places on states. 62 The San Salvador Protocol to the ACHR lays down economic, social, and cultural rights and specifically endorses a right to environment. Article 11 of the Protocol provides that: ‘[e] veryone shall have the right to live in a healthy environment and to have access to basic public services’ and ‘[t]he States Parties shall promote the protection, preservation and improvement of the environment.’ 63 In addition, it contains a provision on the right to health where it is stated that: ‘[e]veryone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being’ 64 and thus in some way endorsing the language used in Article 12 of the ICESCR. When comparing these two conventions one can conclude that the language in the Protocol is better formulated than the one used in the African Charter, as it refers to individual’s rights as opposed to collective rights as under the African Charter. Additionally, it refers to a healthy environment rather than the vague notion of a general satisfactory environment. Despite this, the Protocol took more than ten years to enter into force, highlighting perhaps the reluctance in attitude towards economic rights. 4. Appraisal What can we conclude from the above-mentioned international and regional instruments? Firstly, the Stockholm Declaration recognizes that an environment of a particular quality is necessary for man to enjoy their fundamental rights to freedom, equality, and adequate conditions of life but it does not formulate a specific right to a healthy environment. Therefore, it rather formulates that a healthy environment is necessary for the enjoyment of other basic human rights. Hence, the Stockholm Declaration falls short of recognizing an independent fundamental right to a healthy environment. Although the conference in Stockholm failed to proclaim an explicit human right to a healthy environment, the Stockholm Declaration shows nevertheless the concern of the international community for environmental matters with respect to human rights and, more importantly, set the agenda and framework for future initiatives. 61 African Charter: op. cit ., Article 16(2) and Article 24. Decision regarding Communication 155/96 ( Social and Economic Rights Action Centre/Centre for Economic and Social Rights v. Nigeria ), 2001. Available online at: http:// www1.umn.edu/humanrts/africa/comcases/allcases.html (accessed 4 December 2022). 62 BOYLE, Alan: Human Rights or Environmental Rights? A Reassessment. Fordham Environmental Law Review , Vol. 18 (3), 2007, p. 475. 63 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights (1989), Article 11. 64 Additional Protocol to the American Convention: op. cit ., Article 10.

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